Wollschlaeger v. Farmer
| Decision Date | 29 June 2012 |
| Docket Number | Case No. 11–22026–Civ. |
| Citation | 880 F.Supp.2d 1251 |
| Parties | Bernd WOLLSCHLAEGER, et al., Plaintiffs v. Frank FARMER, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
OPINION TEXT STARTS HERE
Held Unconstitutional
West's F.S.A. § 790.338Augustine Ripa, Bruce Manheim, Douglas Hallward–Driemeier, Julia Lewis, Ropes & Gray, LLP, Daniel R. Vice, Legal Project of the Brady Center to Prevent Gun Violation, Jonathan E. Lowy, Center to Prevent Handgun Violence, Washington, DC, Dennis Gary Kainen, Weisberg & Kainen, Hal Michael Lucas, Hal M. Lucas P.A., Edward Maurice Mullins, Astigarraga Davis Mullins & Grossman, Miami, FL, for Plaintiff.
Jason Vail, Attorney General Office Department of Legal Affairs, Tallahassee, FL, for Defendant.
OMNIBUS ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
THIS MATTER is before me on the Defendants' Second Amended Motion for Summary Judgment (ECF No. 93) and Plaintiffs' Motion for Summary Judgment (ECF No. 86). I have reviewed the arguments, the record, and the relevant legal authorities. For the reasons provided in this Order, Plaintiffs' Motion is granted and Defendants' Motion is granted in part.
The parties have relied primarily on the evidence previously provided to the Court in support and in opposition to Plaintiffs' Motion for Preliminary Injunction. Although I have already recited the facts and the evidence in my Order granting Plaintiffs' Motion for Preliminary Injunction (ECF No. 80) (hereinafter, the “Preliminary Injunction Order”), I will restate them here by way of background.
On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, the “Firearm Owners' Privacy Act” or the “Act”). CS/CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055). The bill created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended other scattered statutes.
Pursuant to § 790.338, licensed health care practitioners or facilities (collectively, “practitioners”) may not (i) intentionally record any disclosed information concerning firearm ownership in a patient's medical record if the practitioner knows the information is not relevant to the patient's medical care or safely, or the safety of others (the “record-keeping provision”); (ii) ask a patient whether she owns a firearm unless the practitioner in good faith believes the information is relevant to the patient's medical care or safety, or the safety of others (the “inquiry restriction provision”); (iii) discriminate against a patient based solely on firearm ownership (the “antidiscrimination provision”); or (iv) unnecessarily harass a patient about firearm ownership (the “anti-harassment provision”).1 Violation of any provision of the law constitutes grounds for disciplinary action under Fla. Stats. §§ 456.072, 395.1055.
Pursuant to Fla. Stat. § 456.073, disciplinary proceedings may be initiated against a practitioner by the Department of Health or through a citizen's complaint. After determining that the complaint is legally sufficient, the Department of Health refers it to a probable cause panel. The probable cause panels are exempt from the open meetings requirement in Fla. Stat. § 286.011 until ten days after the panel has found probable cause. Complaintsdismissed before a finding of probable cause are confidential. The Department of Health may decline to prosecute a case if it finds that the panel “improvidently found” probable cause. § 456.073(4). The Department of Health may also dismiss a complaint at any time if it determines there is insufficient evidence to support prosecution of the allegations. Any disputed facts are resolved in a formal hearing. All final agency actions are subject to judicial review.
According to legislative findings, the State passed the Act at least in part as a reaction to an incident in Ocala, Florida, where a physician advised the mother of a minor patient that she had thirty days to find a new pediatrician after the mother refused to answer questions about firearms in her home. Fla. Health & Human Servs. Comm., H.R. Staff Analysis, H.R. 0155C, at 1 (Apr. 7, 2011) (ECF No. 20–3); Fla. Judiciary Comm., H.R. Staff Analysis, H.R. 0155E, at 1 (Apr. 12, 2011) (ECF No. 20–4). The House of Representatives' Staff Analysis notes that “Florida law does not contain any provision that prohibits physicians or other medical staff from asking a patient whether he or she owns a firearm or whether there is a firearm in the patient's home.” Fla. H.R. 0155C, at 2; Fla. H.R. 0155E, at 2. This law was presumably a means to rectify this perceived gap in Florida laws.
The legislative debates on this bill reveal that the legislature relied heavily on anecdotal information about physicians asking patients about firearm ownership, physicians misrepresenting that Medicaid would not pay out claims if the patient did not answer questions regarding firearms, or physicians refusing to conduct examinations on patients who refused to answer questions about firearm ownership. It does not appear that the Florida legislature relied on any studies, research, or statistics on physicians' practices or patients' experiences on this issue.
At the preliminary-injunction stage of this litigation, the State clarified that the Firearm Owners' Privacy Law “is directed at prohibiting the forced disclosure of firearm ownership by patients during the course of the provision of medical care, as well as the prevention of harassment and discrimination by health care providers against patients based on their ownership of firearms.” . The State maintained that the “primary constitutional right at issue in this litigation” is the right to “keep arms.” ( Id. at 2). According to the State, “the sole focus of the act is the protection of patients who own firearms from the compelled disclosure of the fact they are exercising the constitutional right to possess (i.e., keep) firearms.” ( Id. at 4–5).
At the summary-judgment stage of litigation, the State appears to recast its reading of the Act as mainly an anti-discrimination and harassment bill. The State maintains that “Section 790.338 is a run-of-the-mill anti-discrimination law....” . The State notes, “Section 790.338 prohibits discriminatory or harassing conduct, but incidentally burdens speech, if at all, by limiting the type of questions a practitioner can make in the medical treatment setting in the absence of medical necessity (subsection 2) and the recording of information in the medical record where [it] is available to others who may be tempted to discriminate.” ( Id. at 4).
Plaintiffs provide evidence that, as part of the practice of preventive medicine, practitioners routinely ask and counsel patients about a number of potential health and safety risks, including household chemicals, swimming pools, drugs, alcohol, tobacco, and firearms. Some practitioners use patient and parent screening questionnaires for new patients or patients scheduled for annual check-ups, in which they ask about a variety of health and safety risks, including access to firearms. ( See, e.g., Schaechter Decl. ¶ 9; Wollschlaeger Decl. ¶ ¶ 6–7). Some physicians also orally inquire about risks, including firearms, during other types of patient visits. ( See, e.g., Schaechter Decl. ¶ 10; Schechtman Decl. ¶ 7). Several plaintiffs and other physicians state that information about firearm safety is always relevant to a patient's preventive care. ( See, e.g., Leland Decl. ¶ 7; Edwards Decl. ¶ 13). Several plaintiffs and other physicians state that the law interferes in the doctor-patient relationship and has resulted in diminished efficacy of their practice of preventive medical care. ( See, e.g., Schechtman Decl. ¶ 12; Leland Decl ¶ 12; Wollschlaeger Decl. ¶ 11; Sacks Decl ¶ 12; Fox–Levine Decl. ¶ 16).
The American Academy of Pediatrics (“AAP”) and its Florida chapter (“FAAP”), as well as the American Academy of Family Physicians (“AAFP”) and its Florida chapter (“FAFP”), publish practice guidelines and policy statements that recommend that physicians provide counseling and anticipatory guidance on the prevention of injuries. (Cosgrove Decl. ¶ 10; Raspa Decl. ¶¶ 7–8). Part of such counseling and guidance involves counseling patients and families on matters including diet, second-hand smoke, alcohol abuse, household chemicals, use of swimming pools, use of bicycle helmets, automotive safety, and firearms safety. (Cosgrove Decl. ¶ 14; Raspa Decl. ¶ 9). Similarly, the American College of Physicians (“ACP”) and its Florida chapter (“FACP”) advance the position that a physician has a “critical role” in providing preventive injury counseling on diet, exercise, substance abuse, domestic violence, risky recreational activities, use of swimming pools and smoke detectors, and firearms safety. (Himmelstein Decl. ¶ 8).
On June 24, 2011, Plaintiffs, physicians and physician interest groups, filed a First Amended Complaint alleging that the Firearm Owners' Privacy Act violates the First and Fourteenth Amendments of the U.S. Constitution. (ECF No. 15). The parties have filed cross motions for summary judgment on the Act's constitutionality.
A court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The parties do not dispute the facts in this case; the sole issue before me is an issue of law. See Brayshaw v. City of Tallahassee, Fla., 709 F.Supp.2d 1244, 1247 (N.D.Fla.2010). I will therefore proceed to resolve this case on its merits through summary judgment.
Plaintiffs bear the burden of establishing standing....
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