Wollschlaeger v. Farmer, Case No. 11–22026–Civ.

• Decision Date: 14 September 2011
• Docket Number: Case No. 11–22026–Civ.
• Citation: 814 F.Supp.2d 1367
• Parties: Bernd WOLLSCHLAEGER, et al., Plaintiffs v. Frank FARMER, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

814 F.Supp.2d 1367

Bernd WOLLSCHLAEGER, et al., Plaintiffs

v.Frank FARMER, et al., Defendants.

Case No. 11–22026–Civ.

United States District Court, S.D. Florida.

Sept. 14, 2011.

Validity Called into Doubt

West's F.S.A. §§ 790.338(1),(2),(5),(6),(8), 456.072(1)(mm).

Douglas Hallward–Driemeier, Julia Lewis, Augustine Ripa, Bruce Manheim, Ropes & Gray, LLP, Daniel R. Vice, Jonathan E. Lowy, Washington, DC, Dennis Gary Kainen, Weisberg & Kainen, Douglas J. Giuliano, Hal Michael Lucas, Edward Maurice Mullins, Astigarraga Davis Mullins & Grossman, P.A., Miami, FL, for Plaintiffs.Jason Vail, Attorney General Office, Department of Legal Affairs the Capitol PL–01, Tallahassee, FL, for Defendants.Thomas Richard Julin, Hunton & Williams, Gerald Edward Greenberg, Gordon McRae Mead, Jr., Stearns Weaver Miller Weissler Alhadeff & Sitterson, and Randall C. Marshall, American Civil Liberties Union Foundation of Florida, Miami, FL, are counsel for amici curiae supporting the plaintiffs' position.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

MARCIA G. COOKE, District Judge.

THIS MATTER is before me on the Plaintiffs' Motion for Preliminary Injunction. (ECF No. 16). On July 13, 2011, I held a hearing on the Motion. I have reviewed the arguments, the record, and the relevant legal authorities. For the reasons provided in this Order, the Motion is granted.

I. Background

On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, “Firearm Owners' Privacy 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,” 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 safety, 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 “anti-discrimination provision”); or (iv) unnecessarily harass a patient about firearm ownership (the “antiharassment provision”).¹ Violation of any provision of the law constitutes grounds for disciplinary action under Fla. Stats. §§ 456.072, 395.1055.

A. Legislative History and State's Clarification of the Law

According to the State's legislative findings, the State passed the law in 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.

In this litigation, the State has 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.” Defs.' Resp. 1. The State maintains 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.

The State contends that the law does not prevent physicians from conveying information about firearm safety. Under the State's reading of the law, a physician may provide firearm safety information to every patient, either orally or through written materials, even when she does not believe it is relevant, as long as she does not ask the patient any questions about firearm ownership or possession. The State presumably does not believe that providing such unsolicited information would be “unnecessarily harassing” under § 790.338(6). A physician may ask whether the patient owns or possesses a firearm when she in good faith believes that it is relevant to the patient's safety, or the safety of others.

Further, according to the State's interpretation of the law, the inquiry restriction provision constitutes nothing more than a recommended course of conduct for practitioners. According to the State, compliance with this provision is merely hortatory; it is not a requirement. See Hearing Tr. 29:5–9 (“[The law] recommends to practitioners that they refrain from asking about firearm ownership in most cases, but it does not prohibit it.”); cf. Defs.' Supp. Resp. 3 (“Allegations that a physician merely made an inquiry regarding firearm ownership or had a discussion about firearm safety would be legally insufficient [for a complaint before the Department of Health] because neither act is prohibited under the law.”). However, §§ 790.338(8) and 456.072(1)(mm) provide that a violation of the inquiry restriction provision constitutes grounds for disciplinary action against the practitioner.

The State also clarifies that, although the anti-discrimination provision prohibits physicians from discriminating against a patient solely based on firearm ownership, it does not alter existing law that allows a physician to terminate the doctor-patient relationship. See Hearing Tr. 29:24–31:6. According to the State, a physician may still terminate the doctor-patient relationship after the patient declines to answer a question about firearm ownership.² See Hearing Tr. 30:22–25 (“[T]he legislature decided that they didn't want to interfere with the rights of the physicians to terminate the relationship with the patients if there was a refusal to answer.”). However, violation of the antidiscrimination provision may constitute grounds for disciplinary action under § 456.072(1)(mm).

B. Practice of Preventive Medicine

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.

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). Plaintiffs seek a preliminary injunction enjoining enforcement of the law.

II. Legal Standard

To obtain a preliminary injunction, a movant must establish (1) it has a substantial likelihood of success on the merits of its claim, (2) it will suffer irreparable injury unless the injunction is issued, (3) the threatened injury to it outweighs the possible injury that the injunction may cause the Defendant, and (4) if issued, the injunction would not disserve the public interest. N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir.2008).

III. Analysis

At issue in this litigation is a law directed at maintaining patients' privacy rights regarding firearm ownership...