Dr. Bernd Wollschlaeger, Dr. Judith Schaechter, Dr. Tommy Schechtman, Am. Acad. of Pediatrics, Fla. Chapter, Am. Acad. of Family Physicians, Fla. Chapter, Am. Coll. of Physicians, Fla. Chapter, Inc. v. Governor of State
| Decision Date | 25 July 2014 |
| Docket Number | No. 12–14009.,12–14009. |
| Citation | 760 F.3d 1195 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
| Parties | Dr. Bernd WOLLSCHLAEGER, Dr. Judith Schaechter, Dr. Tommy Schechtman, American Academy of Pediatrics, Florida Chapter, American Academy of Family Physicians, Florida Chapter, American College of Physicians, Florida Chapter, Inc., Roland Gutierrez, Stanley Sack, Shannon Fox–Levine, Plaintiffs–Appellees, v. GOVERNOR OF the State of FLORIDA, Secretary, State of Florida, Surgeon General of the State of Florida, Secretary, Health Care Administration of the State of Florida, Division Director, Florida Department of Health, Division of Medical Quality Assurance, George Thomas, Jason Rosenberg, Zachariah P. Zachariah, Elisabeth Tucker, Trina Espinola, Merle Stringer, James Orr, Gary Winchester, Nabil El Sanadi, Robert Nuss, Onelia Lage, Fred Bearison, Donald Mullins, Brigette Rivera Goersch, Bradley Levine, Defendants–Appellants. Broward County Medical Association, Broward County Pediatric Society, Palm Beach County Medical Society, Florida Public Health Association, University of Miami School of Law and Youth Clinic, Children's Healthcare is a Legal Duty, Inc., Early Childhood Initiative Foundation, American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, American Academy of Family Physicians, American Academy of Orthopaedic Surgeons, American College of Surgeons, American College of Preventive Medicine, American College of Obstetricians and Gynecologist, American Congress of Obstetricians and Gynecologists, American Psychiatric Association, Center for Constitutional Jurisprudence, Doctors for Responsible Gun Ownership, National Rifle Association of America, American Medical Association, Aclu Foundation of Florida, Alachua County Medical Society, American Public Health Association, American Association of Suicidology, Suicide Awareness Voices of Education, Law Center to Prevent Gun Violence, Amicus Curiae. |
OPINION TEXT STARTS HERE
Douglas Hallward–Driemeier, Bruce S. Manheim, Jr., Julia Lewis, Augustine Ripa, Ropes & Gray LLP, Jonathan E. Lowy, Daniel R. Vice, Washington, DC, Dennis G. Kainen, Weisberg Kainen Mark, PL, Hal M. Lucas, Hal M. Lucas, P.A., Edward M. Mullins, Astigarraga Davis, Miami, FL, for Plaintiffs–Appellees.
Jason Vail, Allen C. Winsor, Pam Bondi, Timothy David Osterhaus, Office of the Attorney General, Tallahassee, FL, for Defendants–Appellants.
Anthony T. Caso, Chapman Univ. School of Law, Orange, CA, Bryan H. Heckenlively, Munger Tolles & Olsen, LLP, San Francisco, CA, Richard Harry Levenstein, Kramer Sopko & Levenstein PA, Stuart, FL, Charles J. Cooper, Peter A. Patterson, David H. Thompson, Cooper & Kirk, Washington, DC, Thomas Richard Julin, Jamie Zysk Isani, Hunton & Williams, LLP, Gerald Edward Greenberg, Gelber Schachter & Greenberg, PA, Gordon McRae Mead, Jr., Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA, Miami, FL, Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, for Amicus Curiae.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11–cv–22026–MGC.
Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,* District Judge.
The Governor of the State of Florida, other Florida officials, and members of the Board of Medicine of the Florida Department of Health (collectively, the “State”), appeal from the District Court's grant of summary judgment and an injunction in favor of a group of physicians and physician advocacy groups (collectively, “Plaintiffs”) enjoining enforcement of Florida's Firearm Owners Privacy Act 1 (the “Act”) on First and Fourteenth Amendment grounds.
The Act seeks to protect patients' privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms. The Act recognizes that when a patient enters a physician's examination room, the patient is in a position of relative powerlessness. The patient must place his or her trust in the physician's guidance, and submit to the physician's authority. In order to protect patients, physicians have for millennia been subject to codes of conduct that define the practice of good medicine and affirm the responsibility physicians bear. In keeping with these traditional codes of conduct—which almost universally mandate respect for patient privacy—the Act simply acknowledges that the practice of good medicine does not require interrogation about irrelevant, private matters.
As such, we find that the Act is a legitimate regulation of professional conduct. The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient's care. It is uncontroversial that a state may police the boundaries of good medical practice by routinely subjecting physicians to malpractice liability or administrative discipline for all manner of activity that the state deems bad medicine, much of which necessarily involves physicians speaking to patients. Although the Act singles out a particular subset of physician activity as a trigger for discipline, this does little to alter the analysis. Any burden the Act places on physician speech is thus entirely incidental. Plaintiffs remain free—as physicians always have been—to assert their First Amendment rights as an affirmative defense in any actions brought against them. But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful. Furthermore, when the Act is properly understood as a regulation of physician conduct intended to protect patient privacy and curtail abuses of the physician-patient relationship, it becomes readily apparent from the language of the Act the type of conduct the Act prohibits. Accordingly, we reverse the District Court's grant of summary judgment in favor of Plaintiffs, and vacate the injunction against enforcement of the Act.
On June 2, 2011, Florida Governor Rick Scott signed the Act into law. The Act created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient's Bill of Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act. The Florida legislature passed the Act in response to complaints from constituents that medical personnel were asking unwelcome questions regarding firearm ownership, and that constituents faced harassment or discrimination on account of their refusal to answer such questions or simply due to their status as firearm owners.2
The Act provides, in relevant part, that licensed health care practitioners and facilities (i) “may not intentionally enter” information concerning a patient's ownership of firearms into the patient's medical record that the practitioner knows is “not relevant to the patient's medical care or safety, or the safety of others,” § 790.338(1); (ii) “shall respect a patient's right to privacy and should refrain” from inquiring as to whether a patient or his or her family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient's medical care or safety, or the safety of others,” § 790.338(2); (iii) “may not discriminate” against a patient on the basis of firearm ownership, § 790.338(5); and (iv) “should refrain from unnecessarily harassing a patient about firearm ownership,” § 790.338(6).3
Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). § 456.072(1)(nn). Furthermore, “[v]iolations of the provisions of subsections (1)-(4) constitute grounds for disciplinary action under [Fla. Stat. §§ ] 456.072(2) and 395.1055.” § 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a practitioner has violated the Act, the practitioner faces disciplinary measures including fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her medical license. § 456.072(2). An investigation culminating in disciplinary action may be initiated against a practitioner by the Department of Health or may be triggered by a citizen's complaint. § 456.073. The minutes of a June 2, 2011, meeting of the Rules/Legislative Committee of the Board indicate that the Board is prepared to initiate disciplinary proceedings against a practitioner who violates the Act, stating that “the Committee [has] determined [that] violation of [the Act] falls under failure to comply with a legal obligation and the current disciplinary guidelines for this violation would apply.” Doc. 87, at 5.
On June 6, 2011, four days after Governor Scott signed the Act into law, Plaintiffs filed a 42 U.S.C. § 1983 action against the State in the United States District Court for the Southern District of Florida, alleging that the inquiry, record-keeping, discrimination, and harassment provisions of the Act facially violate the First and Fourteenth Amendments of the United States Constitution, and seeking declaratory and injunctive relief. Plaintiffs contended that the Act imposes an unconstitutional, content-based restriction on speech, is overbroad, and is unconstitutionally vague.
On September 14, 2011, finding that Plaintiffs were likely to succeed on the merits, the District Court preliminarily enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act, together with the provisions providing for discipline of practitioners who violate the Act. Wollschlaeger v. Farmer, 814 F.Supp.2d 1367, 1384 (S.D.Fla.2011) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)).
On June 2, 2012, the District Court permanently enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment...
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Dr. Bernd Wollschlaeger, Dr. Judith Schaechter, Dr. Tommy Schechtman, Am. Acad. of Pediatrics, Fla. Chapter, Am. Acad. of Family Physicians, Fla. Chapter, Am. Coll. of Physicians, Fla. Chapter, Inc. v. Governor Florida
...and COOGLER,* District Judge.TJOFLAT, Circuit Judge: We sua sponte vacate and reconsider our original opinion in this matter, reported at 760 F.3d 1195. We substitute in its place the following opinion. The Governor of the State of Florida, other Florida officials, and members of the Board ......
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...it must be analyzed as such for purposes of the First Amendment.” King, 767 F.3d at 229. There are “many dimensions” to professionals' speech. Fla. Bar v. Went For It, Inc., 515 U.S. 618, 634, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). And “[t]here are circumstances in which we will accord spe......
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