As a federal appeals court ponders the constitutionality of Florida's "docs v.glocks" law, attorneys this week debated in court documents whether it would be possible to jettison parts of the controversial measure --- and keep others.
The full 11th U.S. Circuit Court of Appeals heard arguments June 21 in a challenge by physician groups and individual physicians to the 2011 law, which seeks to restrict doctors from asking questions and recording information about patients' gun ownership. Two days after the arguments, the court asked attorneys to file briefs about the issue of "severability," a legal concept that can involve eliminating unconstitutional parts of laws while retaining other provisions.
Attorney General Pam Bondi's office and a lawyer for the physicians filed briefs Monday taking starkly different positions on the question.
Bondi's office said the appeals court could carve out unconstitutional pieces of the law while keeping the rest intact.
"The act's provisions are functionally independent, and any invalid provision can easily be severed without disrupting the operation or integrity of the remaining provisions," Deputy Solicitor General Rachel Nordby wrote. "If the court determines that any provision of the act is invalid, the court should apply the doctrine of severability and uphold all remaining valid provisions of the act."
But plaintiffs say the law, dubbed by the Legislature as the Firearm Owners' Privacy Act, cannot be broken apart. The plaintiffs contend the law violates doctors' First Amendment rights.
"The challenged provisions of FOPA (Firearm Owners' Privacy Act) are parts of a single legislative act, adopted by the Florida Legislature as a package, with a shared unconstitutional purpose," plaintiffs' attorney Douglas Hallward-Driemeier wrote. "In enacting FOPA, the Florida Legislature indisputably intended to chill speech by health care practitioners about firearms --- and indeed a particular viewpoint on the same --- with which the Legislature disagreed."
The law, which is backed by gun-rights groups such as the National Rifle Association, seeks to place a series of restrictions on doctors and other health providers. For example, it seeks to prevent physicians from entering information about gun ownership into medical records if the physicians know the information is not "relevant" to patients' medical care or safety or to the safety of other people.
Also, the law says doctors should refrain from asking about gun ownership by patients or family members unless the doctors believe in "good faith" that the information is relevant to medical care or safety. Also, the law seeks to prevent doctors from discriminating against patients or "harassing" them because of owning firearms.
In addressing the severability question, Hallward-Driemeier's brief said some members of the appeals court during oral arguments posed a "hypothetical scenario" about possibly trying to narrow the anti-discrimination provision.
The appeals court typically does not signal when it will rule in cases, and judges have been divided on the constitutionality of the law --- widely known as the "docs v. glocks" law.
A U.S. District Court judge blocked the law from taking effect, but a three-judge panel of the appeals court upheld the law in three rulings. The full appeals court then took the somewhat-unusual step of agreeing to hear the case.
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