Sunday, February 19, 2017

11th Circuit partially Reverses 3 Judge Panel on Interrogation and Record Keeping of Gun Ownership

The 11th Circuit has released their en banc ruling on Wollschlaeger v. Florida. They partly reversed the three judge panels ruling on whether doctors have the right to interrogate patients on gun ownership, and record the answers in medical records, outside of reasons concerning individual patient care. The three judge panel had asserted that the state had a compelling interest in protecting Second Amendment rights, and could regulate licensed doctors to do so. The legislation in question is the Firearms Owners' Privacy Act (FOPA).

The 11Circuit asserted that doctors were merely private actors. As private actors, they have no legal authority to take away patients firearms.  From
The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients’ firearms or otherwise infringed on patients’ Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.
The new ruling also stated that fears that electronic databases that contained private firearms information could be misused and subject to hacking were merely "hypothetical" and therefore not usable to support the FOPA legislation.
The state officials rely in part on the panel’s assertion that the challenged FOPA provisions are constitutional because there is a danger that information electronically stored by doctors and medical professionals about firearm ownership might be subject to hacking, theft, or some other intrusion. See Wollschlaeger IV, 814 F.3d at 1195 n.22 & 1197. Under heightened scrutiny, however, a court may not come up with hypothetical interests and rationales (or discover new evidence) that might support legislation that restricts speech.
The ruling upheld the right of patients to refuse to give information about private ownership of guns to doctors, and the provision of the law that forbids discrimination based on firearms ownership.

The record-keeping, inquiry, and anti-harassment provisions of FOPA violate the First Amendment, but the anti-discrimination provision, as construed, does not. The district court’s judgment is affirmed in part and reversed in part, and the case is remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.
With the election of President Trump, and the potential of the repeal of Obamacare, concerns of federal abuse of medical records have been slightly reduced.  But the major reason for concern of the mix of doctors, medical records, and information about gun ownership, is that a data base of gun owners would be abused.

It is likely that gun owners will compare this ruling to the recent ruling in the Ninth Circuit, where a purely hypothetical rational was used to uphold a waiting period for gun purchases.  From
The district court's assumption is not warranted. An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd. A 10 day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home identified in Heller.
It seems a hypothetical reason is impermissible in the 11th circuit as a reason to protect Second Amendment rights, but is permissible in the 9th circuit to uphold infringements on the Second Amendment.

It is unknown if Wollschlaeger v. Florida will be appealed to the Supreme Court. Only a limited number of cases that are appealed to the Supreme Court are accepted.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch


Anonymous said...

HIPAA was signed by Clinton, HITECH by Obama, but not as part of Obamacare. Until these two tumors are excised, any information given to medical doctors can be reviewed at will by any of 20 or so federal agencies. Once integrated into their records, it remains their indefinitely.

Anonymous said...

For decades the government has been chipping away at the fourth amendment protections. Personal privacy is a right. the reason a mans wife or a woman's husband cannot testify against them is the privacy between spouses. Your papers and personal effects are private. Your personal relationship between you and your doctor is private. the constitution require the government at what ever level to prove you guilty of a crime without forcing you to incriminate your self, you can not be forced to testify against your self. You can not be questioned with out legal counsel present. the government cannot use any thing that is not a matter of public records so what has the government done? they pass laws making more and more private documents public record creating the source for identity theft and fraud and creating the source for entering your privacy without permission. Your DNA, your finger prints, your retinal scan and your blood type are all unique personal and private.

The Bible requires eye witnesses to convict any one for any thing and to take your life there must be three witnesses under oath. taking an oath is a very serious issue. An oath according to the Bible is a promise to God you do not dare violate. The Bible says it is better to let 100 guilty go free than to convict one innocent person, Why because God himself knows who is guilty and they will eventually not get away with what ever they have done.

There is so much government corruption behind the scenes it is difficult for people to comprehend. Private prisons for profit are behind a lot of these fourth amendment violations. corrupt judges and legislators make money from these violations. the average person has no concept of the research required to understand what is going on. proof we have the largest prison population in the world. the situation is so perverse that an organization makes money by over turning wrongful convictions. there would be no big brother problem is there was no money to be made. It has nothing to do with enforcing the law it is all about profit.

Wireless.Phil said...

The doctor can ask, but I don't have to tell the truth!

Anonymous said...

It is the same as our government supporting torture. Torture may work on some but others will only tell you anything to stop the torture. the reason we are not supposed to torture is we take the high ground and can charge those with war crimes that do torture. it only makes it ok for others to torture our captured men and women. torture is a war crime as stated in the Geneva accords. well our government is doing everything else to its own citizens that is unconstitutional why not torture? I was present when California Highway Patrolmen beat a man into submission to get a DWI blood draw when the man had the legal right to refuse. when the facts came out in court the Highway patrol had to drop the charges and the case was thrown out. Nothing ever happens to California highway patrolmen even when they murder people. I personally know of at least three times the California Highway patrol should have gone to prison for their actions. I witnessed one murder that was ruled a good shooting. and after a person is down from sever shots to the chest explain why an extra shot to the head is not an execution/murder? I am sick of bad cops getting away with murder and supposedly good cops covering for them. any cop that shoots a woman with her hands in the air, is on the ground after the shots to the chest and shoots her in the head is an executioner and a murderer. the united states supreme court has ruled that cops duties are not to protect any one their job is to investigate crime and bring the suspects to trial. their motto is to protect and to serve is BS. a badge has become a license to kill. I fear cops more than punks. I have just seen to much corruption all over this country. I worked the ER for over 20 years I have had to try to save the lives of many of the cops victims. Tell you just how corrupt our legal system is. it has been ruled that cops can lie under oath in court as long as the court has been informed. a prosecution trick.

Anonymous said...

They can get you there too, lying to the government or a government agent, that would be the doctor, is a crime. Why do we even have the fifth amendment if they are going to continue to do end runs around it. the word infringe applies to all of our bill of rights. People had better wake up to just how important that Bill of Rights is. Infringe even applies to the tenth amendment the states do not get to tell us what their power is. the US congress does not get to tell us what their power is. the powers are spelled out and any thing other than what is written is an infringement. Like the supreme court making a ruling that says it has the authority to interpret the law. I challenge you to find that power written in the constitution. find the power in the constitution that states can amend the 26 words of the second amendment. find the power in the constitution that allows the president to rule by executive order. congress has the only law making authority and it can not violate the constitution in making those laws. congress can not ratify treaties that violate our constitution. No power on earth is above our constitution. AND nobodies opinion is enforceable law.

ExpatNJ said...

Response to: "Wireless.Phil, 2/20/2017 05:55:00 AM":

Your approach might work for now (and, maybe longer).

By statute and case history, it is against the law to lie to a law-enforcement officer.

Should doctors ever be nationalized and/or 'deputized' by the US government (as already done in countries like China, Cuba, Venezuela, etc), you can be sure it will become against the law in the US to lie to them.

Ever complete a 4473, get a FAID card, Carry Permit, or leave other documentation you KNOW is going to be computerized and kept by one of the many 'Little Brothers' out there? Your answer to your doctor can eventually be compared to the record ...

Anonymous said...

Check your new IRS information. the government is already cross referencing everything in their data banks.

Anonymous said...

the VA turned over 160,000 names to the BATFE and then claimed they has a security breech and were not sure just how many names were involved.