Monday, December 21, 2015

11th Circuit: Doctors Have no Right to Interrogate Patients About Gun Ownership

The 11th Circuit has struck a resounding blow against the medicalization of gun control and in favor of the Second Amendment.

As criminological research has shown that infringements on Second Amendment rights either increase violent crime and murder rates, or have no effect, those that push for a disarmed public got creative in finding a way to justify their desire.  They settled on the medicalization of guns, or as they say, framing the debate as a public health concern.   The purpose is simple.  Define "gun violence" as a disease, and guns become something that the government can regulate without worrying about the pesky Second Amendment.  One of the first and favorite means of expanding power to the federal government has been to claim that regulation was needed for public health concerns, such as mandatory vaccination.

Mandatory vaccination violates fourth and fifth amendment protections in the name of public health.  Those violations have been supported by Supreme Court decisions.  You can be locked up without committing a crime.  Your property can be confiscated and destroyed without due process.  Your freedom of movement can be abolished.  Your physical person can be violated.   Apply that logic to the Second Amendment and the elimination of an armed population becomes an exercise in public health.  It is easy to see the attraction for dedicated disarmists.

Consider the ability of the government to apply quarantines, road blocks, warrant-less searches, and internment of infected people.  Now apply those to contain the "virus" of guns, that are said to spread "gun violence".

One of the attractions of this method was the ability to create a database of gun owners via their medical records.  This has been pushed for decades, and has become especially attractive to disarmists since the passage of Obamacare, where medical records are available to at least 35 government agencies.  

The American Acadamy of Pediatricians has been one of the most strident proponents of creating records of gun owners and proselytizing the supposed benefits of citizen disarmament. 

In Florida, a pediatrician went so far as to refuse treatment to a patient that refuse to answer if they had guns in the home.  Doctors demanded that they access children without parents being present, to grill them about the presence of guns in the home.  This sparked resistance.  Resistance resulted in a state statute designed to stop the use of medical power and privilege for the purpose of infringing on Second Amendment rights.

Disarmist Doctors sued, claiming that they had First Amendment rights to say what they wanted to patients, that guns were a medical concern, and that there were no privacy rights when it came to gun ownership.

The Federal District Court  found for the doctors, with a summary judgement.  The State of Florida appealed to the 11th Circuit.

The 11th Circuit slapped down the District Court decision in three revised decisions, each decision a stronger refutation of the claims of the disarmist doctors.  The last decision destroys the presumptive basis for the medicalization of gun control.  The plaintiffs will ask for en banc review.    From

The 11th Circuit, however, reversed—and now has issued three opinions explaining its reasoning. In the first opinion, the court said the law was a reasonable regulation of professional conduct. In the second, it vacated the first opinion and said the law restricted professional speech and survived intermediate scrutiny under the First Amendment. In this, its latest pronouncement, after vacating the second opinion, the court said the law survived the highest level of review accorded under the First Amendment, strict scrutiny.
I found the 82 page decision to be well reasoned, compelling, and easily understandable.  Here is a summation, with select quotes.  From the decision(pdf):

With this great authority comes great responsibility. To protect patients, society has long imposed upon physicians certain duties and restrictions that define the boundaries of good medical care. In keeping with this tradition, the State passed the Act. The Act codifies the commonsense conclusion that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care—especially not when that inquiry or record- keeping constitutes such a substantial intrusion upon patient privacy—and that good medical care never requires the discrimination or harassment of firearm owners.
Perhaps the most important part of the decision is the obvious, common sense statement that the mere ownership of guns is not a medical issue, that medical relevancy is limited to particularized cases.   Firearms are not automatically relevant to medicine.   It is clear that the court finds that firearm ownership is not a public health issue.
Taking these three points together, we think the record-keeping provision stands for the simple proposition that a physician may not record a patient’s firearm-ownership status unless the physician believes that—because of some particularized information about the individual patient, for example, that the patient is suicidal or has violent tendencies—the patient’s firearm-ownership status pertains to the patient’s medical care or safety, or the safety of others. The record-keeping provision is sufficiently clear that a person of common intelligence need not guess as to what it prohibits.

The decision finds that the statue passes strict scrutiny test of the First Amendment  because the State has a compelling state interest in protecting Second Amendment rights.
 We do not hesitate to conclude that states have a compelling interest in protecting the fundamental right to keep and bear arms. A right expressly guaranteed by the Constitution. The Act protects the right to keep and bear arms by protecting patients from irrelevant questioning about guns that could dissuade them from exercising their  constitutionally guaranteed rights, questions that a patient may feel they cannot refuse to answer, given the significant imbalance of power between patient and doctor behind the closed doors of the examination room.
The Court found that the State has a compelling interest to protect the privacy of  firearms owners about their ownership of firearms.  Disarmists have attempted to assert that there can be no privacy rights when it comes to firearms.  The court ruling destroyed that assertion.
In our view, the logic of Jones easily leads to the conclusion that the right to privacy in one’s status as a firearm owner is sacrosanct and thus compelling. Plaintiffs rely on Jones to argue otherwise, but Jones only undercuts their argument. Plaintiffs maintain that the privacy interest here cannot be sacrosanct because, like party affiliation, information on firearm ownership is already subject to disclosure to the state and federal governments. We disagree. The rights at issue here are indisputably more valued and cherished by American society than mere privacy in one’s party affiliation. As the Court specifically noted in Jones, the privacy of party affiliation is not the same as “confidentiality of medical records.” Id. Florida’s commitment to keeping the firearm ownership status of its citizens out of their medical records, then, is exactly the type of sacrosanct and compelling privacy interest the Jones Court appears to have contemplated.

The Court found that the statute was narrowly tailored, and that placing the information in medical records made the information on gun ownership at risk to public distribution because of the danger of hacking and the accessibility of the information by numerous federal agencies.

The Court also found that a physician who categorically tells a patient that it is unsafe to own a gun, without a specific medical reason, is chilling the exercise of the patient's Second Amendment rights.
It is of course an interference with Second Amendment rights for a trusted physician to tell his patient—for no medically relevant reason whatsoever—that it is unsafe to own a gun. Though such actions, on their own, may not stop the patient from owning a gun, complete prohibition is hardly required to infringe on constitutionally guaranteed rights. Such speech chills the patient’s exercise of his rights and that is sufficient.
There are many more nuggets of well written wisdom in the 82 page decision.  Here is the concluding paragraph.
Though the Act applies in only a small number of circumstances, when it does apply it plays an extremely important role in protecting patients. The Act is not a legislative revolution, but it does not need to be. It narrowly protects patients in a focused manner in order to advance the State’s compelling interest in protecting the Second Amendment’s guarantee to keep and bear arms and patients’ privacy rights in their medical records, exactly the sort of tailoring strict scrutiny requires. Those are rights that must always be protected in ways big and small. Accordingly, we hold that the District Court erred by concluding that the Act violates the First Amendment. The Act withstands strict scrutiny as a permissible restriction of speech.
This is a significant decision for Second Amendment Supporters.  If it is upheld, it will become precedent in the 11th Circuit.  I will be watching to see if the plaintiffs succeed in their request for en banc review.   If en banc review is denied,  I expect the plaintiffs to appeal to the Supreme Court.

Definition of  disarmist

©2015 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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Anonymous said...

I wonder if this will also have relevance in that the 11th Circuit has jurisdiction over the entire state of Georgia, including Atlanta, where the CDC is located. This is because the CDC is a prime focus of guns as a health issue.

Wireless.Phil said...

But the CDC gets no funding for gun issues!

Also, if a doctor ever asked me if I owned a gun, it's none of his or her business, I'd lie!