Dennis Kainen Quoted in Daily Business Review

Attorney Dennis Kainen was quoted in the Daily Business Review’s article on a recent case. The article has been reposted below for your convenience!
ABA Seeks En Banc Review of ‘Docs Vs. Glocks’
Noreen Marcus, Daily Business Review
September 14, 2015


Case no.: 12-14009
Date: July 28, 2015
Case type: Civil rights
Court: U.S. Court of Appeals for the Eleventh Circuit
Author of opinion: Judge Gerald Bard Tjoflat
Lawyers for petitioners: Augustine Ripa, BuckleySandler, Washington; Bruce S. Manheim Jr., WilmerHale, Washington; Daniel R. Vice, Legal Action Project, Washington; Douglas Hallward-Driemeier and Julia Lewis, Ropes & Gray, Washington; Hal M. Lucas, Lucas Savitz, Miami; Jonathan E. Lowy, Brady Center to Prevent Gun Violence, Washington; and Edward M. Mullins, Astigarraga Davis, Miami
Lawyers for respondents: Pamela Jo Bondi, Office of the Attorney General, Tallahassee; and Allen C. Winsor, Office of the Solicitor General, Tallahassee
Lawyers for amicus ABA: Paulette Brown, ABA president, Chicago; Richard J. Ovelmen, Carlton Fields Jorden Burt, Miami; and William C. Hubbard, Nelson Mullins Riley & Scarborough, Columbia, South Carolina
Panel: Tjoflat and U.S. District Judge L. Scott Coogler, Northern District of Alabama; Circuit Judge Charles Wilson (dissent)
Originating court: Southern District of Florida
The 400,000 lawyer-strong American Bar Association is urging the Atlanta appellate court to review a panel decision in a politically charged case—not once, but twice.
Fourteen months ago a panel of the U.S. Court of Appeals for the Eleventh Circuit reversed U.S. District Judge Marcia Cooke’s ruling that struck a Florida law on First Amendment grounds. The 2011 law nicknamed “Docs vs. Glocks” penalizes doctors who discuss firearm ownership and safety with patients.
According to the majority opinion by Judge Gerald Bard Tjoflat, the Miami judge was wrong in finding the First Amendment had anything to do with the statute. Over a long and passionate dissent by Judge Charles Wilson, Tjoflat decided Florida’s Firearms Owners Privacy Act is a lawful expression of the state’s right to regulate physicians.
The ABA responded with an amicus brief supporting the doctors and allied medical associations and pressing for full-court review.
Instead, on July 28 the same panel withdrew its first decision and published a new one accompanied by another vigorous Wilson dissent.
Now the majority admits the First Amendment is implicated but says the law is valid because legislators had good enough reasons to pass it, satisfying the constitutional inquiry. They were protecting patients’ privacy and freedom from being harassed about exercising their Second Amendment rights, Tjoflat concluded.
Physicians “remain free—as they have always been—to assert their First Amendment rights as an affirmative defense in any actions brought against them,” he wrote. “But we will not, by striking down the Act, effectively hand Plaintiffs a declaration that such a defense will be successful.”
Limited Progress
In its second amicus brief the ABA updated what it said initially: The act fails to pass constitutional muster under the panel’s standard, called intermediate scrutiny. Anyway, tougher “strict scrutiny” should be used to evaluate laws like Florida’s that chill professional speech, the group argues.
“The State could not openly restrict speech it disfavors, so it has attempted to fasten its restriction to its power to regulate the medical profession. That is wrong,” the ABA brief states.
It warns the majority’s “reasoning could similarly be applied with precedential force to other regulated professionals (including attorneys) to limit their advice to patients and clients.”
Why push unusually hard to get all 11 active Eleventh Circuit judges to review the panel’s reworked work product?
The group carefully vetted the situation before concluding “some progress had been made, but not enough,” said Richard Ovelmen, an ABA co-counsel in the case.
Ovelmen said he expects the full court to review the panel decision.
“The willingness of the majority to make a good deal of movement suggests they were aware that other judges on the court disagreed with them,” said Ovelmen of Carlton Fields Jorden Burt in Miami. Still unknown is whether the majority shifted enough to appease most of the judges—or if Wilson can convince five of his colleagues that he’s been right all along.
Doctors’ Dilemma
In the big picture, the dispute is about what level of scrutiny courts may apply to state laws that burden constitutional rights: Will it be strict or the more deferential intermediate analysis? The Ninth Circuit opted for intermediate in a 2013 decision, Pickup v. Brown, and the U.S. Supreme Court declined certiorari.
Ovelmen said he doesn’t believe Pickup signals the Florida case will end in the Eleventh Circuit.
“The Supreme Court waits for the lower courts to thoroughly masticate an issue, but I think this case will go to the Supreme Court,” he said. He noted that seven circuits ruled on same-sex marriage before the justices made it the law of the land in June.
As for Wollschlaeger v. Florida, “it would be very helpful if this was en banc, and they reversed,” Ovelmen said.
No doubt Dr. Bernd Wollschlaeger of the Aventura Family Health Center in North Miami Beach would like his name attached to a successful lawsuit.
The doctor is not an anti-firearm zealot; he’s a gun owner with a concealed-weapon permit.
“The first thing I learned about guns was to use them properly, specifically, how to not injure yourself or others,” Wollschlaeger said in an interview with the American Academy of Family Physicians News.
“When I discuss child safety with parents, I first ask about pool safety, then cleaning materials safety and then my third point is a question about gun safety,” he said. “I make them aware that I safeguard my gun at home because I have children. Then I ask, ‘How do you do that?’ ”
Dennis Kainen, former local counsel to Drs. Wollschlaeger and Judith Schaechter, still sounds outraged about the law that would silence them.
“The state of Florida is limiting free speech and we’re paying for it as citizens, we’re paying for Florida lawyers to argue against the right of doctors to speak freely to their patients,” said Kainen of Weisberg Kainen Mark in Miami. “The state should be embarrassed.”
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