From: Sent Thursday, January 13, 2011 10:38 AM To: Cunningham. Katie; CELLON.CONN1E Subject: Accident Facts -- Guns vs. Doctors Attachments: mums ACCIDENT FACTS June 2010 In the United States since 1830: - The population has more men DOUBLED. - The number of privatefy owned ?rearms has more than OWMUPLED, - And the annual number of accidental harms dea?'ta has DECREASED 81%. The?atai?rearm accident rate has DEGREASEDW shooxhe all-time him recorded in 1M4. mumdaaths. Comparing accident 31:; (mm per 100.000) to amu- seam mm: 1. Motorveliclawddm 14.6 1. mvdideaooldem 18.3 2. Poisonhg 9.9 2. Pointing 4 13.4 3. Polls 7.5 3. Fdla 9.5 4. Su?ocmkm 8. Chokmg 2.0 4. Wm 2.1 5. Drawing 1.1 6. Won 5 Choking 2.1 8. Fl!? 8: Burns 1.1 8. Phi Bums 0.7 7. mam 1!de 0.1 7. Bloyclu 0.7 8. EIMronrmmal won 0.5 8. Medical 9. a. 0.3 9. Enwunmainl Mon 0.4 10. FIREARMS 0.2 10. MW 0.1 1mm 01 Mal Ire-rm acoldants to nth-r loom: Nationwide: And I: Honda: . wetnesmclam II. 10 tlmeemmdlofran gastlfoca?on. 24 ?Whimmw&sx?won. 8 24 timmoredoimmdmunng 5 Mumaadb?anim. 8 Mumdlefrorn?m 2 am? more do 1mm environmerml faciom I limo moredbfrom mulled mum-mm." -. Natlomvlde, the annud nunber of mu ?rearm aco?ems among CHILDREN has deoreaad 88% 3111001976. In ledm?whml?mmacddutr?eanmg 1933. ('l'hereware nonehlaatrepomdyaar) Data sources: Mom] Getter for Health Statistics Madam! Safety Cwnul Bureau of the Census Bumu n! Anabel. Tobacco. rim-m and Ex?odves Fianna Industry reports 0 PD. 80! 13870 32302, (8501224518 From: To: Subject Attachments: MPHammerlGaome Tuesday, October 30. 2012 6'28 PM CELLONLONNIE: Cunningham. Katie Amicus from 8: Doctors for Repsonsible Gun Ownership For Respon'slbleGuan?micuspdf Case:12-14009 Date Filed: 092412012 Page: lot 23 No. 12-14009 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH DR. BERND et 01., PIainli?s-Appellees, v. GOVERNOR STATE OF FLORIDA, by and through Attorney General Pam Bondi, et at, Defendants-Appellants. ON APPEAL FROM THE U.S- DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF AMICI CURIAE CENTER FOR CONSTITUTIONAL JURISPRUDENCE AND DOCTORS FOR RESPONSIBLE GUN OWNERSHIP IN SUPPORT OF DEFENDANT S-APPELLANTS JOHN C. EASTMAN ANTHONY T. CASO, Counsel of Record Center for COnstitutional' Jurisprudence c/o Chapman University School of Law One University Drive . Orange, CA 92886 Telephone: (714) 628?2666 E-Mail: caso@chapman.edu Counsel for Amici Curiae Center for Constitutional Jurisprudence and Doctors for Responsible Gun Ownership et al., No. 12-14009 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Amici Ctn'iae hereby state that they have no parent companies, trusts, subsidiaties, and/or a?'lliates that have issued shares or debt securities to the public. Pursuant to Eleventh Circuit Rule 26.1-1, in addition to the list of interested parties contained in the Brief for Appellants, the Imdersigned counsel for Amici hereby certi?es that, to the best of his knowledge, the following persons, ?rms, and associations may also have an interest in the outcome of this case as amici curiae or its counSel: Center for Constitutional Jurisprudence a project of the Claremont Institute for the Study of Statesmanship and Political Philosophy, a non-pro?t organization which has no parent companies and issues no stock; Doctors for Responsible Gun Ownership a project of the Second Amendment Foundation, a non?pro?t organization which has no parent companies and issues no stock; John C. Eastman, counsel for amici; and Anthony T. Caso, counsel for amici. is/ Anthony T. Ca?o_ Anthony T, Caso Attorney for Amici Curiae C1 ofl Case: 12-14009 Date Filed: 0912412012 Page: 3 of 23 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT C1 of ?1 TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 INTERESTS AND IDENTITY OF AMICI CURIAE 1 STATEMENT OF THE 2 OF ARGUMENT 2 ARGUMENT 5 THE ACT COMPELLING INTEREST OF PROTECTING THE CONSTITUTIONAL RIGHTS OF ITS CITIZENS TO KEEP ARMS ..5 II. FLORIDA ALSO HAS A COMPELLING INTEREST IN PROTECTING THE PRIVACY RIGHTS OF ITS CITIZENS 8 A. Florida?s Citizens Have A Reasonable Expectation Of Privacy In The Ownership Of Firearms 9 B. Existing Patient Privacy Laws Inadequately Protect The Informational Privacy Interests Of Florida Patients And Firearm Owners 13 CONCLUSION 15 CERTIFICATE OF COMPLIANCE 16 CERTIFICATE OF SERVICE 17 Case: 12.14009 Date Flled:09/24I2012 Pagez4of 23 TABLE OF AUTHORITIES CASES Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446 (2000) 1 Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) 10 Florida Retail Federation, Inc. v. Attorney General of Florida, 576 F. Supp. 2d 1281 (ND. Fla. 2008) 15 Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct.'2446 (2003) 1 Katz v. United States, 389 U.S. 347. 88 S. Ct. 507 (1967) 12 McDonald v. City of Chicago, 561 U.S. 130 S. Ct. 3020 (2010) 4 Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006) 1 Wesberry v. SandersCt. 526 (1964) 10 STATUTES 42 U.S.C. - 7 American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 4101, 123 Stat. 115 (2009) 17 Fla. Stat. 395302516 Fla. Stat. 790.0601 14 Fla. Stat. 790.335 14 Fla. Stat 9 Fla. Stat. ?790.338 passim Fla. Stat. ?790.338(5) 7 Fla. Stat 7 Fla. Stat. 381.026 (Florida Pa?ent?s Bill of Rights and pronsibilities) 11 Health InSurance Portability and Accountability Act of 1996 (HIPPA) 16 ii Case: 12?14009 Date Filed:09i2412012 Page: 50f 23 OTHER AUTHORITIES Blackstone William, Commentaries 1:139 (1765), in 5 The Founders' Constitution 210 (Univ. Chicago Press 1987) 8 Declaration of Rights, art. .13, Penn. Const. (1776), in 5 The Founders? Constitution 210 (Univ-Chicago Press 1987) 8 English Bill of Rights, ?7 (1689), in 5 The Founders? Constitution 210 (Univ. Chicago Press 1987). 8 ?rst, Lilian R, Between Doctors and Patients: The Changing Balance of Power (1998) 6 10mm] of the 1997?1998 Constitution Revision Commission, Number 1 Organization Session (June 16, 1997) 12, 13 Overton, Chief Justice Ben E, Repoxt to the Constitution Revision Commission (1977) 13 Warren, Samuel D. Brandeis, Louis D., The Right to Privacy, 4 HARV. L. REV. 193 {1890) 11 REGULATIONS 45 16 45 164 (2009) 16 CONSTITUTIONAL PROVISIONS Fla. Const; an. I, 23 - 12 Fla. Const. of1838 alt. I, 21 9 Fla. Const. of 1990 art I, 8 9 Case: 12-14009 Date Filed: 09/24/2012 Page:60f 23 PRELIMINARY STATEMENT The Center for Constitutional Jurisprudence and Doctors for Responsible Gun Ownership respectfully submit this brief as amicz' curiae in support of Appellant Governor, State of Florida, et at. to urge the Court to reverse the district court?s order enjoining the Firearms Owners? Privacy Act (the INTERESTS AND IDENTITY 0F AMICI CURIAE The Center for Constitutional Jurisprudence was founded in 1999 as the public interest litigation arm of the Claremont Institute for the Study of Statesmanship and Political Philosophy. The Center provides legal representation and litigation support in cases of constitutional signi?cance. It also advances its mission of restoring the principles of the American Founding to their rightful and preeminmt authority in our state and national life through snategic litigation. The Center has participated as amicus curiae in many cases of constitutional importance before the Supreme Court, including Rapanos v. United States, 547 U.S. 715, 126 S. Ct. 2208 (2006); Grutfer v. Bollinger, 539 U.S. 306, 123 2325 (2003); and Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446 (2000). The Center for Constitutional Jurisprudence also participated as amicus curiae in McDonald v. City of Chicago, 561 U.S. 130 3020 (2010), a Second Amendment case of particular relevance to the constitutional claims . at issue here. Case: 12-14009 Date Filed: 0912412012 Page: 7 of 23 Doctors for Responsible Gun Ownership was founded in 1994 and is now a project of the Second Amendment Foundation. Doctors for Responsible Gun Ownership is a nationwide network of health care professionals, doctors, scientists, and others who support the safe and lawful use of ?rearms. It has fought the public health assault on ?rearm owners as part of its mission to expose the anti-gun bias behind medical scholarship. Pursuant to Federal Rule of Appellate Procedure 29, amicz? curiae certify that this brief was not written in whole or in part by counsel for any party, and that no person or entity other than amici, its members, and its counsel has made a monetary contribution to the preparation. and submission of this brief. All parties have consented to the ?ling of this brief. STATEMENT OF THE ISSUES Amici focus on whether Florida has an interest underlying the challenged law su?icient to overcome any First Amendment burden from the prohibition on discrimination or tmnecessary harassment of patients based on the exercise of their state and federal constitutional rights. SUMMARY OF ARGUMENT When patients visit their physician, they expect to enter a safe haven where their health concerns can be alleviated by a trusted professional. Dm'ing the brief but open discussion with the physician, patients should feel comfortable telling or Case: 12-14009 Date Filed: 09/242012 Page: 8 of 23 asking the physician anything no matter how embarrassing. And the physician will presumably function as a source of information and comfort. This delicate environment can be easily disrupted if a patient at any time feels threatened by the physician.? The relationship can also be- undercut if the physician records in the permanent medical record whether the patient exercises his constitutional right to own a ?rearm. Patient records are not simply maintained by a single physician or health facility, but will follow the patient and be disclosed to every health professional from whom the patient seeks advice or treatment. The recording of private, nonmedical information regarding the exercise of state and federal constitutional rights on permanent patient records'taints future relationships and may discourage the patient from seeking medical care. Florida protected the constitutional rights to bear arms, the state constitutional right to privacy, and future doctor-patient relationships by enacting the FirearmOwners? Privacy Act (the This law ensures that citizens of Florida who exercise their constitutional right to keep ?anns are free from harassment and discrimination in the physician?s of?ce. Florida thus protects not only the right itself but also the patient?s state censtitutional right to privacy from intrusion through extensive interrogation about ?rearm ownership. The law does not prohibit physicians from passing along information about ?rearms safety. The Act merely prevents a physician from exploiting the doctor-patient relationship to Case: 12-14009 Date Filed: 09/24/2012 Page: 9 of 23 harass er discriminate against a patient based on the exercise of his constitutional right to own a ?rearm. Fla. Stat. ?790.338; McDonald v. City of Chicago, 130 at 3050. The Act in no way restricts the First Amendment rights of physicians who wish to advocate against gun ownership or any other constitutional freedom. They remain ?ee to make their arguments outside of the doctor-patient relationship. The Act protects patients, however, from doctors who wish to advocate against the Constitution and disguise it as medical treatment, and then to make a permanent record of the patient?s responses. Florida?s law serves a compelling interest in protecting the-state and federal constitutional right to keep me and the explicit state constitutional right to privacy. Amici agree with the position put forward by the National Ri?e Association earlier in this litigation that a lower standard than strict scrutiny should apply in analyzing the plaintiffs? claims. But even if the Court applies strict scrutiny, Florida?s compelling interests will allow the law to pass constitutional muster. Patients have an interest to be free from harassment, discrimination, and intimidation when visiting a physician. This Court should join Florida in sustaining that interest by upholding the Act. Case: 12-14009 Date Filed: 0912442012 Page: 10 of 23 ARGUMENT I. THE ACT SERVES THE COMPELLING INTEREST OF PROTECTING THE CONSTITUTIONAL RIGHTS OF ITS CITIZENS TO KEEP ARMS The Act does not prevent doctors from counseling their patients on gun safety, but it does prevent the physician from inquiring and recording information about ?rearm ownership in the patient?s medical record if the information is not relevant to the patient?s health and safety. Fla. Stat. ?790.338. Practically speaking, the Act prevents physicians from placing what other physicians may regard as a permanent blemish on the patient?s record, trailing the patient to every doctor the patient may see. In effect, the patient would never be able to escape the permanent medical record. The Act shields patients from a doctor placing his political disagreement with the patients? exercise of a constitutional right on the permanent medical record. This law merely" gives patients a small degree of power to assert in the doctor?s o?ice against a physician who operates in an intimidating position of authority and expertise. See Lilian R. Furst, Between Doctors and Patients: The Changing Balance of urge to live is so intense in most patients as to make them willing and even glad to defer to the doctor?s competence . . . A doctor?s tendency to dominate a consultation with a string of inquiries can easily implicate patients? constitutional right to keep arms even without patients? knowledge. Id. A doctor?s questions can interfere with Case: 12-14009 Date Filed: 091242012 Page: 11 of 23 patients? exercise of the right by putting patients in a hesitant position where they question their ownership of ?rearms because of physician disapproval. Patients may ultimately forego their right to keep arms under physician intimidation. But Florida?s Act would protect patients? right to keeparms from the harassment and intimidation of current and ?rm physicians, who can pressure patients into re?aining from ?rearm possession. Fla. Stat. ?790.338. The law does not interfere with doctor free speech rights there is no such right to discriminate based on the exercise ofa constitutional right (Fla. sen. nor is there a right to L?unnecessarily" harass a patient over ownership of a ?rearm (Fla. Stat. Florida has a compelling interest in protecting patients frOm discrimination and harassment based on the exercise of constitutional rights and to protect patients from having permanent notations made on their medical record regarding the exercise of those constitutional rights. The right to keep arms has long been regarded as a fundamental right that predated the Bill of Rights. The right to bear arms was included in the English Bill of Rights in 1689. English Bill of Rights, ?7 (1689), in 5 The Founders? Constitution 210 (Univ. Chicago Press 1987). This ?ght quickly became engrained in the culture that the Founders? brought to America. Blackstone, the legal commentator on whom the Founders often relied, referred to the right to bear arms as part of the ?natural right of resistance and self-preservation.? William 6 Case: 12-14009 Date Filed: 09l24f2012 Page: 12 0t 23 Blackstone, Commentaries 1:139 (1765), in 5 The Founders? Constitution. 210 (Univ. Chicago Press 1987). Moreover, the right to bear arms appears in the earliest state constitutions. See Declaration of Rights, art. 13, Penn. Coast. (1776), in 5 The Founders? Constitution 210 (Univ. Chicago Press 1987). Florida is no di??erent. Florida?s constitution has protected the right of its citizen to keep aims for nearly 175 years and there is no indication thatit will cease to do so. Since it was ?rst codi?ed in 1838, the right to keep arms has been emphasized as a right to the defense of one?s self or one?s house. The 1838 provision states that the citizens of Florida will ?have a right to keep and to bear arms for their common defence.? Fla Coast. of 1838 art. I, ?21. The essence of the 1838 language has persisted to this day. The latest version of the Florida constitution states: ?The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be Fla. Const. of 1990 art I, Ownership of a ?rearm therefore serves as a long?recognized constitutional tool for ensuring both individual safety and the safety of the community. The state has an undoubted interest in protecting this right against acts of unnecessary harassment and discrimination. This provision of Florida law is not'unique. Other provisions of state law also protect the right to keep arms. While Florida statute ?790.25(1) declares as its policy that ?it is necessary to promote ?rearms safety,? the law emphasizes that it 7 Case112-14009 Date Filed: 0912412012 Page: 13 of 23 must be carried out ?in favor of the constitutional right to keep and bear arms for lawful purposes.? Furthermore, subsection (4) emphasizes that ?790.2$ supplements the'right to bear arms guaranteed by Florida?s constitution and that ?nothing in the statute shall impair or diminish any of such rights.? It should come as no, surprise, therefore, that Florida would also prohibit physicians from impairing or diminishing the right to keep arms. Fla Stat. ?790.338. The support for the right to keep arms in Florida?s laws and legislation re?ect the state?s compelling interest in upholding the constitutional rights of its citizens. .See Wesbeny v. SandersCt. 526, 535 (1964) (protection of voting rights); Duke v. Cleland, 954 F.2d 1526, 1532-33 (11th Cir. 1992) (protection of First Amendment Rights). II. FLORIDA ALSO HAS A COMPELLING INTEREST IN PROTECTING THE PRIVACY RIGHTS OF ITS CITIZENS The Florida Patient?s Bill of Rights provides: ?The patient?s rights to privacy must be respected to the extent consistent with providing adequate medical care to the patient and with the ef?cient administration of the health care facility or provider?s of?ce.? Florida Patient?s Bill of Rights and Responsibilities, Fla. Stat. 381.026. Together with Florida?s cons?tutional, statutory, and case law, the Florida Patient?s Bill of Rights protects patient privacy interests. Medically irrelevant questions regarding ?rearm ownership are inconsistent With these rights. Along with questions that are not necessary to medical care and treatment, 8 Case: 12-14009 Date Filed: 09/2412012 Page: 14 of 23 discrimination and harassment compromise the doctor-patient relationship by wrong the patient in an uncomfortable position. Florida has a compelling interest in protecting the patient?s privacy during the course of this relationship, especially if the state is paying doctors through Medicaid or similar programs. The state has an interest in ensuring that physicians do not misuse these funds to harass and discriminate against individuals seeking medical care solely on the basis of the exercise of state and federal constitmional rights. The Act is a necessary tool for the state to protect patient privacy interests. A. Florida?s Citizen: Have A Reasonable Expectation Of Privacy In The Ownership Of Firearms Florida?s constitution, statutes, and case law have led the citizens of Florida to believe that they have a reasonable expectation of privacy in owning a ?rearm. See Samuel D. Warren St. Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 197?198 (1890) (explaining that existing law, which includes statutory and case law, protects the privacy rights of individuals). It is primarily Florida?s responsibility to protect the personal privacy interests of its citizens. See Katz v. United States, 389 us. 347, 350-51, 88 Ct. 2446 (1967) (?But the protection of a person?s general right to privacy his right to be let alone by other people .. is, like the protection of his property and of his very life, left largely to the law of the individual sum?). Case: 1244009 Date Filed: 0912412012 Page: 15 of 23 Florida?s constitution has provided a signi?cant degree of protection over the general right to privacy for its citizens. Distinct from the US. Constitution, Florida?s constitution grants an express right of privacy to its citizens, stating that ?every natural perSOn has the right to be let alone and free from governmental intrusion into the person?s private life.? Fla. Const. art. I, ?23. Enacted in 1980, the Florida legislature proposed the addition of this privacy provision to the state constitution due to concerns over government intrusion into the lives of individuals. Journal of the 1997-1998 Constitution Revision Commission, Number 1 Organization Session, at 10 (June 16, 1997), available at But those concerns grew to include informational privacy, technological compilation of data, and distribution of private information. See Chief Justice Ben Overton, Report. to the Constitution Revision Commission 2?3 (1977) (on ?le with Fla. St. U. L. Rev., Tallahassee, Fla.) (referencing Florida Supreme Court Justice Overton who asked, ?who, ten years ago, really understood that personal and ?nancial data on a substantial part of our population could be collected by government or business and held for easy distributibn by computer operations?) Technological advances made it easy and cheap to track what was once private information, thereby intruding into individual lives in a greater way than ever expected. Journal of the 1997-1998 Constitution 10 Case: 12-14009 Date Filed: 09/24/2012 Page: 16 of 23 Revision Commission, Number 1 Organization. Session, at 10 (June 16, 1997), available at pdf/crcl .pdf. The statute at issue in this case responds to those concerns by prohibiting inq without a medical reason and further prohibiting the recording of information concerning a patient?s exercise of censtitut'ional rights. This law manages the compilation of data at its source by preventing physicians from even collecting the information unless relevant to the patient?s medical care. Fla. Stat. ?790.338(l) and (2). As a result, only medically relevant information makes it into the pa?ent?s record. As already noted, this is not the only Florida law that protects the privacy ?ghts of its citizens to keep arms. Florida statute ?790.0601 states that ?personal identifying information of an individual who has applied for or received a license to carry a concealed weapon or ?rearm . . . is con?dential . . . Florida statute (5790.335 recognizes the potential for abuse in keeping a record of those who own ?rearms, identifying such record as ?an instrument that can be used as a means to pro?le innocent citizens and to harass and abuse American citizens based solely on their choice to own ?rearms.? As a result, subsection (2) of section 790.335 explicitly prohibits any person from keeping ?any list, record or registry of the owners of those ?rearms." There is no reason that physicians should be exempt from this prohibition. The Florida law at issue directly supports the legislature?s ll Case: 12?14009 Date Filed: 09/24/2012 Page: 17 or 23 intent to protect citizens from abuse based on their choices to keep a ?rearm by prohibiting physicians from entering information about ?rearm ownership into a patients medical record. Fla Stat. Florida?s constitution and statutory law operate to safeguard the privacy interest in ?rearm ownership. Florida Retail Federation, Inc. v. Attorney General of Horida, 576 F. Supp. 2d 1281 (NB. Fla. 2008) ((on motion for preliminary injunction), ?nal judgment entered, 576 F. Supp. 2d 1301 (ND. Fla. 2008)) further demonstrate the state?s attempt to protect the exercise of constitutional rights. Florida Retail involved a statute requiring that businesses allow guns to be secured in cars of the business?s parking lot and timber prohibiting a business from asking a customer or worker whether the individual kept a gun in their car of the parking lot 1d. at 1291, 1293 (?So a state legislature might reasonably choose to give such a worker a ?ght to keep a gun in a vehicle in the parking lot?). Florida Retail demonstrates that the state?s laws prohibiting inquiries into gun ownership do not specifically target physicians. The laws are part of a comprehensive effort to protect constitutional rights. 12 Case: 12-14009 Date Filed: 09/24/2012 Page: 18 of 23 B. Existing Patient Privacy Laws Inadequately Protect The Informational Privacy Interests Of Florida Patients And Firearm Owners Florida?s Firearm Owners? Privacy Act is a necessary measure because under current practices and recent federal government legislation, current laws are inadequate to protect the privacy of patients who are ?rearm owners. The informational privacy rights of Florida?s patients are currently recognized under Florida statute ?395.3025 and the Health Insurance Portability and Accountability Act of 1996 (HIPPA). Florida statute ?39s.3025 requires that a patient?s records be kept con?dential and prohibits disclosure unless the patient consents. Fla. Stat. HIPPA protects the privacy of a patient?s personal information by regulating the inappropriate use of patiut health information. See generally 45 160 (2011); 45 164 (2009). State and federal laws also provide extensive standards to ensure protection of patient information. While these laws protect patient information once they are entered into the system, they do not protect patients from physician inquiries to collect information in the ?rst place. This. danger is further heightened once the information becomes part of the patient?s record because of the growing reliance on electronic technology and new requirements making doctor notations a permanent record that will follow the patient ??om doctor to doctor and thus will 13 Case: 12?14009 Date Filed: 09/24/2012 Page: 19 of 23 be available for all medical professionals to review when the information was never relevant to medical care in the ?rst place. The Am??ican Recovery and Reinvestment Act of 2009 (Stimulus Bill) requires the U.S. Department of Health and Human Services to have ?an electronic health record for each person in the United States by 2014.? 42 U.S.C. 300jj- As part of the Act of 2009, theme Information Technology for Economic and Clinical Health (HITECH) Act offers grants and bonuses as incentives to physicians for the adoption and use of electronic health records. Physicians who do not utilize electronic health records will be penalized beginning in 2015 with reductions in Medicare payments. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 4101,? 123 Stat. 115 (2009). The pressure and eventuality of a federally mandated, wholly electronic medical record system is palpable. Florida?s health care providers will be required to comply. This statute is a reasonable response to protect patient privacy by keeping medically irrelevant information out of the permanent electronic record. 14 Case: 12?14009 Date Filed: 09/24/2012 Page: 20 of 23 CONCLUSION For the reasons stated above, this Court should reverse the district court?s order enjoining the Act. Dated: September 24, 2012. Respectquy submitted, JOHN C. EASTMAN ANTHONY T. CASO, Counsel of Rewrd Center for Constitutional Jurisprudence c/o Chapman University School of Law One University Drive Orange, CA 92886 Telephone: (714) 628-2500 E-Mail: caso@chapman.edu Attorneys for Amici Curiae Center for Constitutional Jurisprudence and Doctors for Responsible Gun Ownership 15 Case: 12-14009 Date Page: 21 of23 CER IFICATE MP This brief has been prepared using fourteen point, proportionately spaced, serif typeface: Microsoft Word 2007, Times New Roman, 14 point. Excluding the parts of the brief exempted by Fed. R. App. this brief contains 3,145 words. Anthony T. Caso Anthony T. Caso Attorney for Amici Curiae 16 Case: 12-14009 Date Filed: 09/24/2012 Page: 22 of 23 CERTIFICATE OF SERVICE I hereby certify that on September 24, 2012, I ?led the foregoing Brief of Amici (kiriae Center for Constitutional Jurisprudence and Doctors for Responsible Gun Ownership by causing paper copies to be delivered to the Comt by US. Mail, postage prepaid and by uploading an electronic copy to the Court?s web site. I also hereby certify that, pursuant to General Order 37 of the US. Court of Appeals for the Eleventh Circuit, I caused the brief to be electronically served through the BCF system upon the following counsel: Edward M. Mullins (emullins@astidavis.com) Astigmga Davis Mullins Grossman, PA. 701 Brickell Avenue, 16th Floor Miami, Florida 33131-2847 Bruce S. Manheim, Jr. (bruce.manheim@ropesgray.com) Ropes Gray LLP 700 12th Street NW, Suite 900 Washington DC. 20005 Timothy David Osterhaus Of?ce of the Attorney General, Florida The Capitol, Suite 400 South Monroe Street Tallahassee, Florida 32399 1 also hereby certify that I caused the briefto be served by U.S. Mail, postage prepaid upon the following counsel: 17 Case: 12?14009 Date Filed: 0912412012 Page: 23 0123 Dennis G. Kainen Weisberg Kainen, PL 1401 BRICKELL AVE STE 800 MIAMI, FL 33131?3504 Pam Bondi Attorney Genexul's Of?ce THE CAPITOL TALLAHASSEE, FL 32399-1050 Augustine Ripa Julia Lewis Ropes Gray LLP 700 12th ST NW STE 900 WASHINGTON, DC 20005 Daniel R. Vice I onathan E. Lowy Brady Center to Prevent Violence 1225 EYE STNW STE 1100 WASHINGTON, DC 20005 Hal Michael Lucas Hal M. Lucas, P.-A. 701 BRICKELL AVE STE 1650 MIAMI, FL 33131 MEL. Attorney for Am icz' Curiae 18 From: MPHammerlanlmm Sent- Thursday. January 13, 2011 520 PM To: MPHammerl?IaolLom Subject: AntIGun Politics in Your Doctor's Office Attachments: AntiGunPolitics,WHEELER.pdf Thought you?d like to see this. It tracks the reasons we had H3455 and 88-432 ?led AntiGun PolitiCS in Your Doctor's Office By Dr. Timothy Wheeler 00 you own a gun? How many guns do you have? Do your children have access-to guns in yourhome? Did you know that having a gun in your home triples your n'Sk of becoming a homicide victim? These are questions your doctor may ask you or your children as part of routine physical examinations or questionnaires. These are ethical boundary violations that violate privacy rights of patlents and families. Gun-related questions in doctors? of?ces are based on a medical political movement against gun owners. That movement is led by the American Academy of Pediatrics. although the AMA and other physician groups have launched similar efforts against gun owners. With a few rare exceptions, such questions about guns do not reflect a physician's concern about gun safety. Rather, they are intended to prejudice impressionable and trusting children and their parents Into thinking that guns are somehow bad. That political motive makes these questions ethically wrong. Any doctor who asks them is a form of unethical conduct known as an ethical boundary violation. And any doctor who commits an ethical boundary violation should be disciplined. Patients who tile written complaints with respective state consumer agenclesare rare, compared to the number patients whose rights are abused. Patients fear retaliation from their doctors and medial staffs. Those fears are not unfounded. Patientsifamilies have been verbally abused and chastised by doctors and medical staffs for refusing to answer gun questions. Doctors have even dented care to children whose parents have refused to be submissive to these ethical boundary privacy violations. In reality. state agencies rarely do anything other than notifying a doctor of a complaint -- creating an even more hostile environment. Patients and families shouldn?t have to suffer in silence. They shouldn't be intimidated or coerced into disclosing personal information about their gun ownership to pollticaliy motivated doctors. Unethical doctors who abuse yourtrust to advance a political agenda agalnst law-abiding gun owning families must be stopped. For more Information contact: Doctor! for Responsible Gm Ownership 0 A Project of 1110 Clement Institute '0 PO Box 1931. Uplmd. California 91185-1931 Phone (909) Sis-0648 Email: Wranontoru From: MPHammerl?aoLcom Sent: Thutsday. July 07, 2011 9:04 AM To: Cunningham. Katie Subject: Brady/Plaintiffs Opposition to NM Intewention Attadnments: 48?Haintiffs_0pposition_to_N Wntemntionpdf They ?ied sult claimlng NRA wanted ho ?gag" them, nowthey want to 'gag' us. Irony or Case Document 48 Entered on FLSD Docket 07!01l201 1 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case. No.: DR. BERND WOLLSCIEAEGER, et aL, Plain?liffs, v. RICK SCOTT, in his o?icial cqaacity as Governor of the Snare of Florida, et 81., Defendants. OPPOSITION TO THE - EATIQNAL RIFLE MOTION 10 Plainn'??s oppose the motion to Wane (the ?Motion?) (DE 36) ?led by the National Ri?e Association The Motion fails to acknowledge that intervention by a non-patty is litigation doea so by seeking leave to ?le a btief?as annals. curiae. has failed to amicus curiae brief as an alternative. The NRA instead seeks to intervene even though it has the same express objective as the Defendants (collectively, ?the Smte?O-namely. defending 155 (the ?Physician Gag Law?). The NRA has not met its burden to overcome the presumption against intervention by citing any evidence showing that the State will not adequately defend the challenged law. The NRA concedes that ?its defense will be largely if not wholly legal in nature," Motion at 11, yet it cites no legal mutants that the State will fail to raise. Instead, the NRA o?'ers only in?ammatory-hyperbole (for example, ealling Plaintiffs? First Amendment challenge to this unprecedented law a ?spurious legal attack,? Motion at 2), Case Document 48 Entered on FLSD Docket 07/01/2011 Page 2 of 10 Case. No.: that only will distract fromthe legal issues inthisoase. To them theNRA would actually raisealtema?ve legal arguments, theyarelikelybe groundedinthe Second Amendment and?ms are en?rely irrelevant to the First and Foul-wemh Amendment issues properly befoi'e the Court If the NRA is permittedto inmvem: despite the State?s defense of the law, the bounds of interventionwouldbe atretehedsobroadlyastoallow interventionbyanylobbyinggmup concerned about the outcome of a legal challenge to a statute Such an expansion would be giventhe expedimd brie?ng and hearing schedule Court. (DE 39.) Ratherthan couldhave expeditious resolution of this case. It chose not to do so. The Court should therefore deny the motion to intervene. FACTUAL BACKGROUND Govemor Scott signed the Physician Gag Law 155, ?An act relating to the privacy of ?rearm owners") on Thursday, June 2, 2011. On Monday, June 6, 2011, Pleimi??s ?led suit challenging the law, seeking. among other forms ofrelief, an injunction. On June 24, 2011, Plaintif?s ?led an amended complaint and moved for a preliminary injunction. (DE 15, 16.) On June 27, 2011, this Court ordered an expedited brie?ng schedule, with the State?s opposition due by noon on July 5, 2011, and Plaintiffs? reply due by July 8. (DE 39.) AlthoughtheNRA hadnotice ofPlein??s? inteutto?le this suit as early as June 3, see Marion Hammer, Memorandlm'l Do NRA Members (June 3, 2011), available at (last visited June 30, 2011) Quoting from Plainti??s? letter to Governor Scott urging him to veto the law and declaring their intent to ?le suit ifhe signed it), the NRA waited more than 3_weeks, until June 27, 2011, to move to Case Document 48 Entered on FLSD Docket 07/01/2011 Page 3 of 10 Case. No.: 1 intervene' Brie?ng on the motion to inten'ene is not due to be completed until July 5, 2011, by which time die State-is due to have fully briefed its opposition to Phintiffs? motion for a preliminary injunction ARGUMENT I. THE NRA FAILS TO MEET THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT UNDER RULE The NRA fails to qualify'for intervention as of right. Rule 24(a)(2) of the Federal Rules of Civil Procedure provides for intervention by a movant ?who claim an interest relating to the pmperty oruansactionthatis the subjeetofthe action, andis so ofthe action may as a practical matter impair or impede the movant?s ability to protect its interest, unless existing parties adequately represent that interest? intervention as of right may occur only if: the application to intervene is timely; (2) the applicant has an interest relating to the property or tmnsactionyvhich is the subject of the action; (3) the applicant is so 5311de that the disposition ofthe action, asaprac?ea] matter,may impedeorimpairhis abilitytoproteetthat interest; and (4) the applicant?s interest will notbe represented adequately by the existing parties to the emit.? Siam: Club, Inc. v. Leai?itt, 488 F.3d 904, 910 (11th Cir. 2007) (quoting Mandam- 88, Inc. v. Tidwell, 896 2d 13l8, 1321 (11th Cir. 1990)). All ?four requirements 111th met,? ManaSota?88, 896 F.2d at 1321, and the movantbeers the burden of proof. See Sierra Club, 488 F.3d at 910. TheCoun need only look at the last of these requizements to conclude that the NRA may not intervene in this case. The NRA has wholly failed to show that its ?interest will not be 1 During the conference pursuant to Locnl Rule Plaintiffs informed the NRA that they would not progressofmeease. Case Document 48 Entered on FLSD Docket 07l01/2011 Page 4 of 10 Case. No.: represented adequately by the existing parties to the suit,? id, which disquali?ee the NRA from intervention as of right. Courts ?presume adequate representation when an existing party seeks the same objectives as the would-be hirervenors.? ?Id. (quoting Clark v. Putnam Country, 168 F.3d 458, 461 (1 1th Cir. 1999)). In cases involving a challenge to government action, the Eleventh Circuit de?nes the sought-after ?objectives? broadly, so that the mount and an existing party share the same objective if they both'aim to ?defend the legality? of the challenged action. See. id. at 911 (a?irrning denial of intervention when movant shared with EPA the objective ?to defend the legality of the approval of Florida?s? list of ?impaired waters? required under the Clean Water Act). Courts do not look at whether a proposed intervenor ?might, as a general nutter, have differmt interests? from the government defendant, but only ?whether the party will represent the proposed intervenor?s interest with respect to the subject matter of the action,? 129., defending the challmged law. Id. at 910 n.9 (emphasis in original). Thus, a group may not intervene when its goal simply ?is to uphold the constitutionality of" a challenged law because that is ?precisely the interest? of the government defendants. Athens Lumber Co. v. Fed. Election Comm 690 F.2d 1364, 1366 (11th Cir. 1982); see also Meadm?eld Apartments, Ltd. v. United States, 261 Fed. Appx. I95, 196 (1 1m Cir. 2008) [denying intervention when proposed ?[i]ntervenors seek exactly the same relief as? the government and ?the arguments made by intervenors and the are substantially the same?). Here, the NRA and the existing defendants, the State, share exactly the same interest-to defend the constitutionality of the Physician Gag Law. The State is therefore presumed to represent the interests adequately. Case Document 48 Entered on FLSD Docket 07/01/2011 Page 5 of 10 Case. No.: 1 intervenor to ?comm forward with some evidence? that ?castls] doubt upon the will of the [government] to defend the legality? of the challenged law. Sierra Club, 488 F.3d at 910-11 (citations omitted) (emphasis added). In cases where the presumption applied, parties have been allowed to intervene only when they have presenmd evidence such as ?collusion" or ?lack of competence,? Resort Timeshare Mala, Inc. v. Stuart, 764 F. Supp. 1495, 1499 (SD. Fla. 1991}; there has- been a ?discussion of settlement? by the government; or there is a speci?c ?claim or defense . . . [that] will not be asserted? by the government. Sierra Club, 488 F.3d at 91 1. Yethere,theNRAfailsto not raise. Instead, the NRA merely speculates about what ?could play a role? in the State's hypothetical lack of will to defend a law signed by the Governor, notwithstanding the concession that some of the Defendants ?serve at the pleasure of the . . . Goirmnor.? Motion at 8-9 n.4. Such fails to meet the bin-den when, as here, ?nothing in the record? provides any such evidence. Sierra Club, 488 F.3d at 911. And, the reliance on Clark v. Putnam County, is misplaced, as in that case the movant presented evidence that the government not only faced the qunndary oftrying to represent the interests ofboth the plaintiffs and the defendants, htit also had ?scum settling, rather than defending, the case. See 168 F.3d 111461?62. Totheeontrary,the State has shown no?ling but unwavering support for this law, as evidenced by Governor Scott?s signing the bill into law immediately following Plaintiffs? advising him of their intention to ?le suit if he did so, as well as the Board of Medicine?s having distributed to doctors a letter, even during the pendency of this litigation, hforming them of the Physician Gag Law?s requirements, Case Document'48 Entered on FLSD Docket 07/01/2011 Page 6 of 10 Case. No.: see Letter from Joy A. Tootle, Exec. Dir., Bow of Medicine, June 14, 201 i, available at (last visited July 1, 2011).2 Moreover, courts speci?cally have cautioned against allowing lobbying groups the right to intervene as parties because "such an expanded de?nition of ?interest? might open the courtroom door to every citizen who has called his congressman concerning legislation . . . . Resort Timeshare Resales, 764 F. Supp. at 1499. In denying- intervention to a group that sought todefend alawithadlobbiedtopass, theoourtinResort Timesharelieraies explainedthat, while lobbying groups are ?encouraged to thrive. and to speak, lobby, promote, and persuade, so that its principles my become, if it is the will of the majority, the law of the land,? that ?does not abortion rights. or to forever defend statutes it helped to enact.? Id. (quoting Keith v. Daley, 764 F.2d 1265, 1269?70 (7th Cir. 1985)). Rather, ?those persons ?required to defend and enforce the law of the state? are the only proper defendants in sucb'an action.? 1d. The court noted that amicus appearances are generally ?rvored in such situations ?in lieu of intervention.? Id. at 1501. See also Athens Lumber Co., 690 F.2d at 1367 (rejecting intervention, but noting that, ?the proper course of action [for a would-be intervenor] may be to ?le a motion for leave to ?le an curfew; brief?). Of course. the NRA has not. actually sought to ?le an amicus curiae brief. Furthermore, the NRA has not shown any interest'?relating to the property or transaction which is the subject ofthe action? or that it ?is so siniated that the disposition oft?ne action, as a practical matter, my impede or impair his ability to protect that interest . . . Stem: Club, 488 ?As?nemcvidmmammisno question thatthe SmeandtheNRAare should benoted endorsed dren?emdidsteRick Scott for election as GovernorofFlorida. giving him an?A" rating. See Public Lena ??om Marion Hammer to Rick Scott, September 15, 2010. available at (last visited June 30, 2011). Case Document 48 Entered on FLSD Docket 07/01l2011 Page 7 of 10 Case. No.: F.3d at 9'10. The interest at issue here in doctor?s and patient?s First Amendment right to engage in an open and ?ank discussion free of government interference. Although the NRA claims to be representing the interests of its members in protecting ?Second Amendment rights,? Motion at 5, such ?interests? are not implicated by this avenue imposing speech restrictions on doctor-patient conversations. The Second Amendment constrains only govermnent action. not private discussions. See Congrats of Racial Equality v. 323 F.2d 54, ?62 (5th Cir. 1963) (it is ?state action of a particular character that is prohibited? not ?[i]ndividusl invasion of individual rights? (quoting Civil Rights Cases, 109 US. 3, 11 (1883)? As there is no Second Amendment right to restrict private speech, the outcome of this litigation cannot infringe or further the NRA's members' Second Amendment rights? This failure to articulate an interest actually at issue in this case is dispositive of the inadequacy of the NRA's motion to intervene. THE NRA ALSO FAILS TO MEET THE REQUIREMENTS FOR PERMISSIVE INTERVENTION UNDER RULE 24 Under Rule a court ?may permit? intervention by a movant who ?has a claim or defense that shares with the main action a common question of law or fact,? but ?must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties? rights.? Fed. R. Civ. P. 2400(1), (emphases added). Permissive intervention is at the discretion of the court, and ?even though there is a common question of law or fact, or the Furtherinore, members? acute] intends in protecting their First rights?which are at issue in this ease?ate in con?ict with their alleged but non-eidstent Second Amendment right to restrict doctotypa?eut speech. Sec, 2.3.. Richard G. Lucemlli, Letter to the Editor, Rom.- Doctors entitled to ?ne speech. too, USA Today, my 18, 2011 (family physician and NRA meet opposing gag 1m); see also Wollsehlneger met. 11; 9?11 (physician and gun-owner opposed to Physician Gag Lam's adverse infect on his practice of medicine); At Letter to the Editor, Florida Wm on Gun Children, USA Today, April 21, 2011, available at (last visited June 30, 2011) (long-time gun user opposing gag law). Case Document 43 Entered on FLSD Docket 07/01/201 1 Page 8 of 10 Case. No.5 requirements of Rule 24(b) are otherwise satis?ed, the court may refuse to allow intervention.? Worlds v. Florida, 929 F.2d 591, 595 (11th Cir. 1991) (per cun'am) (internal citation omitted). In addition to the reasons cited above that apply equally here; the prospect that the NRA will attempt to inject additional, irrelevant issues into this litigation ?nther counsels against It attempt to raise Second Amendment issues in this litigation?despite the fact that, for the reasons already given, Second Amendment interests are not relevant. See Motion at (?The NRA is America's foremost and oldest defender of Second Amendment rights, and it was also a' foremost supporter of the Florida bill,? which ?bene?ts NRA members by . . . protecting patients from discrimination simply because they choose to exercise their constitutional right to keep and bear Injecting such irrelevant issues will needlessly burden the Court and the parties. See ManaSota-88, 896 F.2d at 1323 (af?rming district cOurt?s denial of pennissive intervention in part because ?Appellant seeks to inject numerous issues into the case? that ?would severely protract the litigation?). increasetheburdensonthis Courtandthe parties in other ways. For example, the very timing of motion to intervene?in the midst of brie?ng on Plaintiff's' motion for a preliminary inj1mction-?has already complicated this matter. Consistent with common sense, owns have recognized that ?the introduction of additional parties inevitably delays proceedings.? Athens Lumber Co.. 690 F.2d at 1367. Especially given that the Plaintiffs and Defendants are mutually working under an expedited brie?ng schedule in preparation for a scheduled hearing on Plaintiffs? motion for a preliminary injunction, the Court should deny the motion to intervene and thereby prevent the additional burden and distraction such intervention would cause. Case Document 48 Entered on FLSD Docket 07/01/2011 Page 9 of 10 Case. 1 -22 CONCLUSION For the foregoing reasons, Plainti??s respectfully request that the Motion Inta'vencbedcnied. Dated: July 1, 2011 MW EdwardM. Mullins a. Bar No. 863920) asti . Ha] M. Lucas (Fla Bar No. 853011] asti .com ASTIGARRAGA DAVIS MULLINS GROSSMAN, PA. 701 Bricloell Avemlc, 16?? Floor Miami. Florida 33131-2847 Tel: (305) 372-8282 I Fax: (305) 372-8202 .md. Bruce S. Manheirn. Jr.* ruoe. eim 0 Douglas H. Hallward-Driemcier? Don hallWard- ci 0 . Augustine M. Ripa? Au c.ri 8 .co Julia Lewis" ROPES GRAY LLP 700 12111 StreetNW, Suite 900 Washington DC. 2005 Tel: (202) 508-4600 Fax: (202) 383-8332 -and- Jonathan E. Lowy' br or Daniel R. Vice? BRADY CENTER TO PREVENT Legal Action Project 1225 Stect NW, Suite 1100 Washington, DC 20005 Tel.: (202) 289-7319 I Fax: (202) 898-0059 *Admmed pro hac vice Camel for Plainti?'?' Case Document 48 Entered on FLSD Docket 0710112011 Page 10 of 10 Case. No.: ER ATE OF I HEREBY CERTIFY that on July 1, 2011, electmnically ?led the foregoing document withthe Clerkof?teCourtusingtheCM/ECF ?ling system. the foregoing document isbeing servedthisdatconallommsel ofrecordorprosepaities onthe Service List below in the speci?ed, either via transmission of Notices of Electronic Filing generated by systemor;inaomeother not authorized to receive electronically Notices of Electronic Filing, Mullins Edward M. Mullins (Fla Bar No. 863920) SERVICE LIST et al. v. Scott, et a1. Case N0.: 1 United States Disuict Court, Southern District of Florida Jason Vail '1 ori Assistant Attorney General Of?ce of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Telephone: (850)414-3300 Counsel for Defendants Electronically served via 1'0 Gtegm'yMCesamno Carlton Fields, PA. Miami Tower 100 Southeast Second Street Suite 4200 Miami. Florida 33131 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 Counsel for Proposed Intervenor National Ri?e Association Elecuonically-med via To: Subjod: Attachments: MPHamme-rleaolmm Thursday, May 12, 2011-829 AM Cu'nningham, Katie Can you take a look at this draft and call me? Thanks 790-0601.doc Be It Enacted by the Legislature of the State of Florida: Section 1-. Section 790.0601. Florida Statutes, Is amended to read: 790.0601 Public records exemption for concealed weapons. (1) Personal identifying information of an individual who has applied for or received a license to carry a concealed weapon or ?rearm pursuant to s. 790.06 held by the Division of Licensing of the Department of Agriculture and Consumer Services is con?dential and exempt from s. s. 24(a). Art. i ofthe State Constitution. This exemption applies in such infomiation held by the division before, on, or a?er the effective date of this section. (2) lnfonnation made con?dential and exempt by this section shall gnu be disclosed: With the ewe written consent of the applicant or licensee or his or her legally authorized representative one time release citlc erso enti . By court order upon a showing of good cause. Upon request by a law enforcement agency In connection with the?pedemeriee-ef- Wei-duties at criml investi tion, which shall Include access to any automated database containing such information maintained by the Department of Agriculture and Consumer Services. .AMENDMENT Bill NO. HE 155 (2011) Amendment No. 1 ACTION ADOPTED (YIN) ADOPTED As AMEND- (YIN) ADOPTED w/O OBJECTION FAILED TO ADOPT WITHDRAHN (YIN) OTHER Council/Committee hearing bill: Criminal Justice Subcommittee Representative Brodeur offered the?following: Amendment (with title amendment) Remove everything after the enacting clause and insert: Section 1. Section 790.338, Florida Statutes, is created to read: 790.338 Medical privacy concerning firearms; prohibitions; penalties; exceptions.? A verbal or written inquiry by a public or private physician, nurse, Or other medical staff person regarding the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile of a patient or the family of a patient violates the privacy of the patient or the patient?s family, respectively, and is prohibited. A public or private physician, nurse, or other medical staff person may not conditiOn receipt of medical treatment or medical care on-a person's willingness or refusal to disclose Page 1 of 5 155~Brodeur-01 AMENDMENT Bill Nb. HB 155 (2011) Amendment No. 1 . personal and private information unrelated to medical treatment in violation of an individual's privacy as specified in this section. (0) A public or private physician, nurse, or other medical staff person may not intentionally, accidentally, or inadvertently enter any disclosed information concerning firearms into any record, whether written or electronic, or disclose such information to any other source. A person who violates a provision of this section commits a noncriminal violation as defined in s. 775.08 punishable as provided in s. 775.032 and s. 775.083. If the court determines that the violation was knowing and willful or that the person committing the prohibited act, in the exercise of ordinary care, should have known the act was a violation, the court shall access a fine of not less than $10,000 for the first offense; not less than $25,000 for the second offense; and not less than $100,000 for the third and subsequent offenses. The person found to have committed the violation shall be personally liable for the payment of all fines, costs, and fees assessed by the court for the noncriminal violation. (3) The state attorney in the circuit where the violation is alleged to have occurred shall investigate complaints of noncriminal violations of this section and, where the state attorney determines probable cause that a violation exists, shall prosecute violators in the circuit court where the violation is alleged to have occurred. Any state attorney who fails to execute his or her duties under this section may be Page 2 of 5 155-Brodeur?01 AMENDMENT Bill No. as 155 (2011) Amendment No. 1 held accountable under the appropriate Florida rules of professional conducpi 15) The state attorney shall notify the Attorney General of any fines accessed under this section and notwithstanding s. and if a fine for a violation of this section remains unpaid after 90 days, the Attorney General shall bring a civil action to enforce the fine; (5) Except as required by s. 16, Art. I of the Stage ConStitution or the Sixth Amendment to the United states Constitution, public funds may not be used to defend the unlawful conduct of any person charged with a knowing and willful violation_of this section. (6) Notwithstanding any other provision of this section, it is not a violation for: as defined in s. 394.455, as defined in s. 490.003, school as defined in s. 490.003, or clinical social worker as defined in s. make an inquiry prohibited by paragraph When the person making the inquiry in good faith believes that the possession or control of a firearm or ammunition by the patient would pose an imminent threat to himself, herself, or others. A public or private physicianL nurse. or other medical personnel to make an inquiry prohibited by paragraph if such inquiry is necessary to treat a patient during the course and scope of a medical emergency which specifically includes, but is not limited to, a mental health or episode where the patient's conduct or reasonably indicate that Page 3 of 5 lss?Brodeur?Ol 100 101 102 AMENDMENT Bill No. HE 155 (2011) Amendment No. 1 the patient has the capacity of causing harm to himself, herself, or others. However, a patient?s response to any inquiry permissible under this subsection shall be private and shall not be disclosed to any third party not participating in the treatment of the patient other than a law enforcement officer conducting an active investigation involving the patient or the events giving rise to a medical emergency. The exceptions provided by this subsection do not apply to inquiries made due to a personfs general belief that firearms or ammunition are harmful to health or safety. (7) Medical-records created on or before the effective date of this Act do not violate this Act, nor is it a-violationpgf this Act to transfer such records to another health care provider. Section 2. This act shall take effect upon becoming a law. Remove the entire title and insert: A bill to be entitled An act relating to the privacy of firearms owners; creating-s. 790.338, prohibiting physicians or other medical personnel from inquiring, either verbally or in writing, about the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile Page 4 of 5 155-Brodeur-01 103 104 105 106 107 108 109 .110 111 112 113 114 115 AMENDMENT Bill NO. HE 155 (2011) Amendment No; 1 of a patient or the family of?a patient; prohibiting conditioning the receipt of medical treatment or care on a person's willingness or refusal to disclose personal and private information unrelated to medical treatment in violation of an individual?s privacy contrary to specified provisions; prohibiting entry of certain information concerning firearms into medical records or disclosure of such information by specified individuals; providing noncriminal penalties; providing for prosecution of violations; requiring informing the Attorney General of prosecution of violations; providing for collection of fines by the Attorney General in certain circumstances; providing exemptions; providing an effective date. Page 5 of 5 155?Brodeur-Dl From: Cunningham, Katie Sent: Friday, March 14. 2014 5:11 PM To: - Marion Hammer Subject: Draft Attachments: Depart Fbcdocx Marlon, Attached Is the draft amendmentwe discussed. Note that It Is drafted strikerall (the~ Intent language Is stiII In the bill, but since I n?t make any changes to it it?s not in the amendment). I?ll be sent?ng this draft to the state attorneys and to Stacy. Katie Cunningham, Polity Chief Nor-{dc Home of Representatives Gluing! Junk: Subcommittee Phone: (850) 71'7-4852 HOUSE AMENDMENT 5111 No. cs/cs/ma 39 (2014) Amendment Nb. CHAMBER ACTION Senate House Representative Combae aftersd the following: Amendment (with title Inseam-at) Remove lines 67-285 and insert: Section 2. Subsection (6) is added to section 775.087, Florida Statutes. to read: 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.? Notwithstanding 9. 27.366. the sentencing court shall not impose the mandatory minimum sentence required by subsections (2) or (3) for a conviction for aggravated assault if the court makes written findings that: The defendant had a good faith belief that the aggravated assault was justifiable pursuant to ch. 776: Page 1 of 23 HOUSE AMENDMENT 3111 No. cs/cs/Hn as (2014! Amendment No. 191 The aggravated assault was not committed in the course of conmitting_gnother criminal otfense; jg The defendant does not _pose a threat to Elie safety egg The totality of the in the offense do not justify the imposition of such sentence. Section 3. Section 776:912. Florida Statutes, is amended to read: 776.012 Use or threatene?_u_sg of force in defense of person.? 1gl A person is justified in using or threateningatg use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justitied in using or threatening to use the?uee?oe deadly force 4i+? He or she reasonably believes that using or threatening to use such force.is necessary to prevent imminent death or great bodily harm to himself or herselt or another or to prevent the imminent commission of a forcible person who use; or threatens to use force as provided in subsection (1}.does not have a duty to retreat and has the right to stand his or her ground if the person using or Page 2 of 23 .v (n subsection - ms Oumnnuu?liuh eh. tra- 71! 013(1). here 1: sun. ?hummusalmnyuue Will? HOUSE AMENDMENT 13111 no. cs/cs/ma 89 (2014) Amendment no. threatening the force is not engaged in an unlawful activity and a place where he or she has a right to be. Section 4. Subsections (2). and (3) of section 776.013. Florida Statutes, are amended to read: 776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily herm.r (1) A person is presumed to haVe held a reasonable fear of inninent peril of death or great bodily harm to himself or herself or another when using or threateqi33_to use defensive force that is intended or likely to cause death or great bodily harm to another if: The person against whom the defensive torce was used or threatened was in the process of unlawfulIy and forcefully entering. or had unlawfully and forcibly entered, a dwelling, residence. or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling. residence. or occupied vehicle; and The person who uses or threatens to use defensive force knew or had reason to helieVe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (2) The presunption set forth in subsection (1) does not if 1. The person against whom the defensive ?orce is used or threatened has the right to be in or is a lnwful resident of the dwelling, residence, or vehicle. such as an ouner, lessee, or Page 3 of 23 HOUSE AMENDMENT Bill No. CS/cs/sn as (2014) Amendment No. titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; 0r The person who uses or threatens to use detensive force is engaged in an unlawful activity or is using the dwelling, residence. or occupied vehicle to further an unlawful nativity; or The person against whom the defensive force is used 95 threatened is a law enforcement officer. as defined in s. who enters or attempts to enter a dwelling, residence. or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening_ to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. Its) a person MW and who.is attacked in his or herjdwellingI residenceI or vehicle .duty to retreat and has the right to stand his or her ground and use or threaten to use force neet-?oree?wieh??eiee, including deadly forceL if he or she uses or threatens to use Page 4 of 23 HOUSE MW Bill No. 89 (2014) Amendment Ito. 93 force in accordance with s. 716.012 (1 or s. 776.031 1 94 95 9? - - This man his been nun-1 so all: apply to ?eestls' sits-tune 97 Section 5. section 776.031. Florida Statutes, is amended Int-W 98 to read: .. . 99 776.031 Use or threatened use of force in defense of ah?? :21. ?came. load also has on the assume) 100 My eaters.? 101 (1) A person is justified in using or thresteninn to use 102 ehe-uoe?e! force, except deadly force, against another when and 103 to the extent that the person reasonably believes that: such 104 conduct is necessary to prevent or terminate the others 105 trespass on, or other tortious or criminal interference with. .106 either real property other than dwelling or personal property, 107 lawfully in his or her possession or in the possession of 108 another win is a member of his or her itsuediete family or 109 household or of a person whose property he or she has a legal no duty to protect. However. 3 else person is justified in using or 111 threatening to use deadly force only if he or she 112 reasonably believes that such conduct ?Geese is necessary to 113 . prevent the imminent commission of a forcible felony. h?peneea 11-.--..-.. . 116 arson who uses or threatens to use force as provided.? ?mm:m mm 117 in subsection (1) does not have a duty to retreat and has the Ellyn. '"zn'f'CJT: 2? . . threes-n to s: loses so has as you as 118 right to stand his or her ground If the person using can Page 5 of 23 HOUSE AMENDMENT 3111 as (2014) Amendment No. 119 threatening the force is not engaged in an unlawful activity and 120 is in a place where he or she has a right to be. 121 Section 6. Subsections t1) and (2) of section 776.032, 122 Florida Statutes, are amended to read: 123 776.032 Imunity'i'rom criminal prosecution and civil 124 action for justifiable use or threatened use of force.? 125 (1) A person who uses or threatens to use force as 125 permitted in s. 776.012. s. 776.013, or s. 776.031 is justitied 127 in using such conduct sense and is imnune from criminal 128 prosecution and civil action for the use threatened.use of 129 such force by the representative, or heirs or 130 the screen against whom the force was used or threatened, .. [m :13? my 131 the person against when force was used or threatened is a law are: Wig?? 132 enforcement of?icer, as defined in s. who was acting .- 133 in the performance of his or her official duties and the officer 134 identified himself or herself in accordance with any applicable 135 law or the person using or threatening to use force knew or 136 reasonably should have known that the person was a law 137 enforcement officer. he used in this subsection, the term 133 "criminal prosecution? includes arresting, detaining in custody. 139 and charging or Prosecuting the defendant. 140 (2) A law enforcement agency may use standard procedures 141 for investigating the use or threatened use of force as 142 described in subsection (1), but the agency my not arrest the 143 person for using a?oat-Jung to use force unless it 144 determines that there is probable cause the: the force that was Page 6 of 23 145 146 141 148 145 150 151 152 153 151 155 156 157 153 159 150 161 162 161 164 165 166 167 168 169 170 HOUSE AMENDMENT Bill as. as (2014) Amendment as. used was unlawful. . section 7. Subsection (2) of section 776.011, Florida Statutes, is amended to read: 776.041 Use or threatened use of force by aggrassor.?The justification described in the preceding sections of this chapter is not available to a person who: (2) Initially provokes the use 9: threatened use of force against himself or herself, unless: Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death.or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use-of force which is likeli to cause death or great bodily harm to the assailant: or In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use 95_threatsned use of force. but the assailant continues or resumes the use use of force. Section 8: Subsection (1) of section 776.051, Florida Statutes, is amended to read: 776.051 Use or of force in resisting arrest or making an arrest or in the execution of a legal duty: prohibition.- (1) A person is not justified in the use or threatened use of force to resist an arrest by a law enforcement officer, or to Page 7 of 23 111 172 113' 176 175 176 1'190 191 192 1?3 194 195 156 HOUSE AMENDMENT 3111 No. as (2014) Amendment No. resist a law enforcement officer who is engaged in the execution of a legal duty. it the law enforcement officer was acting in good faith and he or she is known. or reasonably appears, to be a law enforcement officer. Statutes, is amended to read: 716.06 Deadly force by a law enforcement or correctional officer.- (1) ?g applied to a law enforcement officer or correctional officer acting in the performance or his or her ofticial dutiesI The term ?deadly force" means force that is likely to cause death or great bodily harm and includes. but is not limited to: The firing 0: a firearm in the direction or the person to be arrested, even though no intent exists to kill or inflict great bodily harm: and The firing of a firearm at a vehicle in which the person to be arrested is riding. Section 10. Section 776.09, Florida Statutes. is created to md: 776.09 Retention of records pertaining to person: found to be acting in lawful self-defense; expunction of related criminal histog recork 11) whenever the state attorney or statewide prosecutor dismisses an information? indictment! or other charging document, or decides not to file an information. indictment. or Page 8 of 23 - WMMIMKMI the: nu- ma alrmheetotheuuolfoxoehymw WI 197 193 199 200 201 202 203 20? 205 206 207 208 209 210 211 312 213 214 215 216 217 213 219 220 221 222 HOUSE AMINDNEHT Bill No. cs/cs/Hs 89 {2014) Amendment Nb. other Chargiggidocument, because of a findigg_that the person accused acted in lawful self?defense pursuant to the provisions related to the justifiable use of force in chapter 776, that finding shall be documented in writing and retained in the files of the state attorney or statewide prosecutor. (2) Whenever a court dismisses en informationL_indictmentL or other charging dOCument because of a finding that the person accused acted in lawful self?defense pursuant to the provisions related to the justifiable use of ?erce in chapter 776, that gigging shall be recorded in an order or nemorandum. which shall be retained in the court's records- Under either of these conditions. the person accused mgy a certificate of eligibility to expunggaghg associated criminal history record? pursuant to s. notwithstanding the eligibility requirements prescribed in s. or (2). Section 11-! to read: 943.0585 court-ordered expunction of criminal history records.-mhe courts at this state have jurisdiction over their own procedures, including the maintenance. expunction, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions. responsibilities, and duties established by this section. any court of competent jurisdiction may order a criminal justice agency to expunge the criminal history record Page 9 of 23 ?chM has Ila: prm-ttuar. Lav-Jung- 'cm 21? so an: bu immu 223 224 225 226 227 228 229 230 231 232 233 234 235' 236 237 233 239 240 24.1 24.2 243 244 245 246 247 24a HOUSE AMENDMENT Bill No. 89 (2014) Amendment No. of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to sxpunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2) or subsection 55). A criminal history record that relates to a violation of s. 393.135, 9. 394.4593, e.-787.025. chapter 794, s. 796.03. 5, 800.04. 5. 810.14. s. 811.034. s. 825.1025, 6. 827.071, chapter 839, 8. 847.0133, 3. 847.0135: 0- 847.0145, 3. 893.135. 9. 916.1075, a violation onuserated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21. without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to 5. 943.0435. may not be expunged, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant. as a minor, was found to have committed, or pled guilty o: nolo contendere to committing, the offense as a delinquent act. The court may only order expunction of a criminal history retard pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion. order the cxpunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunotion of Page 10 of 23 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264' 265 266 267 268 269 270 271 272 273 274 HOUSE AMENDMENT Bill No. cs/cs/ne 89 (2D14) Amendment No. records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not expunge any record pertaining to such additional arrests if the order to eXpunge does not articulate the intention or the court to expunge a record pertaining to more than one arrest. This section does not prevent the court from ordering the expuncticn of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with lawn, court orders, and official requests of other juriedictione relating to expunction, correction, or confidential handling of criminal history records or information derived therefrom. Thie'aection does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court. (1) PETITION TO EXPUNGE A CRIMINAL HISTORY petition to a court to erpunge a criminal hiltory record is complete only when accompanied by: A valid certificate of eligibility for expunction issued by the department pursuant to subsection (2). The petitioner's sworn statement attesting that the petitioner: 1. Han never, prior to the date on which the petition is filed. been adjudicated guilty of a criminal offense or? comparable ordinance violation, or been adjudicated delinquent Page 11 of 23 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 255 297 293 299 300 HOUSE AMENDMENT Bill no. 89 (2014) Amendment Nb. for committing any felony or a misdemeanor specified in a. 2. Has not been adjudicated guilty of. or adjudicated delinquent tor committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains. 3. Has never secured a prior sealing or expunction of a criminal history record under this section, 3. 943.059. tormer s. 893.14. former s. 901.33. or former s. 343.058. unless expunction is Sought of a criminal history record previously sealed for 10 years pursuant to paragraph (23(hl end the record is otherwise eligible for expunetion. d. Is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to erpunge or_eny petition to seal pending before any court. Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) CERTIFICKTE OF ELIGIBILITY FOR to petitioning the court to expunge a criminal history record, a person seeking to expunge a criminal history record shall apply to the department for a certificate of eligibility for expunction. The department shall. by rule adopted pursuant to chapter 120, establish procedures pertaining to the application Page 12 of 23 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 3i? 319 319 320 321 322 323 32? 325 326 HDUSI AMENDMENT Bill No. CBICSIHB 89 (2014) Amendment No. for and issuance of certificates ct eligibility for expunotion. A certificate of eligibility for expunotion is valid for 12 months after the date stamped on the when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status 0: the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for expunction to a-person who is the subjeCt of a criminal history record it that person: Bee obtained, and submitted to the department. a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates: 1. That an indictment, information, or other charging document was not filed or issued in the case. 2. That an indictment. information, or other charging document, if filed or issued in the case, was dismissed or nolle proeequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction, and that none of the charges related to the arrest or alleged criminal activity to which the petition to expanse pertains resulted in a trial. without regard to whether the outcome of the trial was other than an adjudication of guilt. 3. That the criminal history record does not relate to a violation of s. 393.135. 9. 394.4593, 3. 737.025. chapter 794. a. 796.03, 8.'800.04. s. 810.14. s. 817.034, 3. 825.1025. s. Page 13 of 23 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 3?2 343 344 345 346 347 348 349 350 351 HOUSE AMENDMENT Bill Nb. cs/cs/HB 89 (2014: Amendment no. 827.071, chapter 839, 8. 847.0133, 9. 847.0135. 9. 847.0145. 9. 853.135. 3. 916.1075, a violation enumerated in a. 907.0?1, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21. without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to 8. 943.0435, where the defendant was found guilty of, or ?pled guilty or nolo contendere to any such offense, or that the defendant, as a minor. was found to have'conmitted, or pled guilty or nolo contendere to committing, such an offense as a delinquent actL without regard to whether adjudication was withheld. .anit- a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director. (0) Has submitted to the department a certified copy of the disposition of the charge to which the petition to expunge pertains. Has never, prior to the date on which the application for a certificate of eligibility is filed. been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. (3) Has not been adjudicated guilty of, or adjudicated delinquent for committing. any of the acts stemming from the Page 14 of 23 352 353 354 355 356 357 358 359 360 361 362 363 36? 365 366 367 @68 369 370 371 372 373 374 375 376 377 HOUSE AMENDMENT 3111 Nb. 39 (2014) Amendment Nb. arrest or alleged criminal activity to which the petition to expunge pertains. Has never secured a prior sealing or expunction of a criminal history record under this section. s. 943.059. former a. 993.14, former s. 901.33. or former s. 943.059. unless expunction is sought or a criminal history record previously sealed for 10 years pursuant to paragraph and the record is otherwise eligible for axpunction. Ie.no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to expunge pertains. Has previously obtained a caurt order sealing the record under this section, former s. 893.l4, former a. 901.33, or former s. 943.058 for a minimum of 10 years because adjudication was withheld or because all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were not dismissed prior to trial. without regard to whether the outcome of the trial was other than an adjudication of guilt. The requirement for the record to have previously been sealed for a minimum of 10 years does not apply when a plea nae not entered Or all charges related to the arrest or alleged criminal activity to which the petit10n to expunge pertains were dismissed prior to trial. (3) Promsmc or A PETITION or ORDER ro arm.- In judicial proceedings under this section, a copy of the completed petition to expunge shall be seryed upon the Page 15 Of 23 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 39? 395 396 397 398 399 400 401 402 403 HOUSE AMENDMENT Bill No. cs/cs/Hn 69 (2014) Amendment No. appropriate state attorney or the etateuide prosecutor and upon the arresting agency; however, it in not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to expunge. If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and the arresting agency. The arresting agency is reeponaible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to expunge to the Federal Bureau or Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court. to) For an order to expunge entered by a court prior to July 1. i992. the department Ihall notify the appropriate state attorney or etatewide prosecutor of an order to.expunge which is contrary to law because the pernon.who in the subject of the record has previously been convicted of a crime or comparable ordinance violation or hae had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within to days, to correct the record and petition the court to void Page 16 of 23 ?04 405 406 407 408 409 410 411 412 413 414 415 ?16 417 ?18 ?19 420 421 422 423 424 425 426 427 428 429 HOUSE AMENDMENT Bill No. cafes/HE as (2014.) Amendment No. the order to expunge. The department shall seal the record until such time as the order is voided'by the court. an or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to expunge entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney. and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court. shall arise against any criminal justice agency for failure to comply with an order to expunge when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or such order does not otherwise comply with the requirements of this section. (4) EFTECT OF CRIMINAL HISTORY RECORD criminal history record of minor or an adult which is ordered expunged by a court at competent jurisdiction pursunnt to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department must be retained in all cases. A criminal history record ordered expunged that is retained by the department is Page 17 of 23 ?30 431 432 433 I34 435 436 437 435 ?39 440 441 442 443 444 445 445 4?7 448 449 450 451 ?52 453 ?54 455 HOUSE AMENDMENT 3111 No. 39 1201;) Amendment No. confidential and exempt from the provisions of s. 119.07(1) and s. 24(3), Art. I of the State Constitution and not ayeilahle to any person or entity except upon order of a court of competent jurisdiction. A criminal justice agency may retain a notation indicating compliance with an order to expunge. The person who is the subject of a criminal history record that is expunged under this section or under other provisions or law, including former a. $93.14. tormer s. 901.33, and former s. 943.058. may lawfully deny or fail to acknow1edge the arrests covered by the expunged record. except when the subject of the record: 1. Is a candidate for employment with a criminal justice agency; 2. Is a defendant in a criminal prosecution; 3. Concurrently or subsequently petitions for relief under this section, 9. 943.0583, or s. 943.059: 4. In a candidate for admission to The Florida Bar: 5. Is seeking to be employed or licensed by or to contract with the Department of Children and Families, the Division of vocational Rehabilitation within the Department of Education, the Agency for Health Care Administration. the Agency for Persons with Dieehilitiei. the Department of Health, the Department of Elderly Affairs, or the Department of Juvenile Justice or to be employed or used by ouch contractor or licensee in a sensitive position having direct contact with children, the disabled, or the elderly: or Page 18 of 23 456 ?57 458 ?59 460 461 462 463 ?64 455 .?66 467 463 ?69 470 ?71 472 C73 474 475 476 477 478 479 480 481 HOUSE AMENDMENT Bill No. 89 (2014) Amendment.No. 6. Is seeking to be-employed or licensed by the Department of Education, any district school board. any university leborat?ry school, any charter school, any private or parochial school. or any local governmental entity that licenses child care facilities. Subject to the erceptions in paragraph a person who has been granted an expunction under this section, former s. 893.14, former s. 901.33. or former s. 943.058 may not be held than: any provision of law or this state to commit perjury or to be otherwise liable for giving a false state-eat by reason of such person's failure to recite or scknowledge en expunged crininal history record. Information relating to the existence_of an expunged criminal history record which is provided in accordance with paragraph is confidential and exempt from the provisions of s. 119.o7(1) and s. 24in), Art. I of the State Constitution, except that the department shall disclose the existence of a criminal history record ordered expunged to the entities set forth in subperegrephs 4., 5., 6., and 1. for their respective licensing, access authorisation. end employment purposes, and to criminal justice agencies for their respective criminal jystice purposes. It is unlawful for any employee of an entity set forth in suhperagraph (a11., aubparagraph (a34.. subparagreph suhperegraph or subparagraph (al7. to disclose information relating to the existence of en expungec criminal history record of a person seeking employment. access Page 19 of 23 402 483 48? ?Les 1.06 481 ass 4'9 490 491 492 493 494 495 ?96 497 Isa 499 500 501 502 503 504 505 506 507 HOUSE Bill Nb. CBICSIHB 89 (2014) Amendment no- authorisation. or.licensure with such entity or contractor. except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization. or licensure decisions. Any person who violates this paragraph emits a misdemeanor of the ?rst degree. punishable as provided in s. 775.082 or s. 775.083. (5) EXCEPTION PROVIDED.-Notwithetanding the eligibility requirements prescribed in_paragr?ph and subsection 1311 the department shall issue a certiticate of eligibility for expunotion under this subsection to a person who is the subject of a criminal history record if that person: Has obtained, and submitted to the department. on a form provided by the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which states whether an information, indictment, or other charging document was not filed or was dicmissed_by the state attorney, or dismissed by the court, because it was found that the person acted in lawful self?defense pursuant to the provisions related to justifiable use of torce in chapter 776. Each petition to a court to expunge a criminal history record pursuant to this subsection is complete only when acc isd 1. A valid certificate of eligibility for expunction issued by the department pursuant to this subsection. 2. The petitioner's sworn statement attesting that the petitioner is eligible for such an expunction to the best of his Page 20 of 23 508 509 510 511 512 513 51? 515 516 51? 518 519 520 521 532 523 524 525' 526 5&7 .528 529 530 531 532 533 sauce AMENDMENT 3111 so. cs/cs/sm 89 (2014) Amendment No. or her knowlegge or belief; Any person who knowingly provides false information on such sworn statement to the court comnits a felony of the third degree, punishable as provided in s. 775.082. 3. 775.083, or e. ?This subsection does not confer ang_;ight to the egpunction of a criminal history and aux reggest_?g? expunction of a criminal history record may be denied at the discretion of the court. Subsections (3) and (4) shall apply to expunction ordered under this subsection. The department shall, by rule adopted pursuant to chapter 120, establish precedures pertaining_te the application for and issuance of certificates of for expunction under this subsection. STATUTORY reference to any other chapter, section. or subdivision of the Florida Statutes in this section constitutes a general reference under the doctrine of incorporation by reference. Section 12. This act shall take effect upon,hecoming a lawPage 21 01.23 534 535 536 537 533 539 5w 54.1 542 543 544. 545 546 547 543 559 550 551 552 553 554 555 555 557 553 559 HOUSE AMENDMENT Bill me. c5/cs/ns 89 (2014) Amendment Nb. Relove lines 4-38 and insert: 775.087, prohibiting the court from imposing certain mandatory minimum sentences if the court nake- specified written findings; amending s. 776.012, 5.8.: applying provisions relating to the use of force in defense of persons to the threatened use of force; providing that a person who lawfully uses or threatens to use force does not have a duty to retreat it the person using or threatening the torce is not engaged in an unlawful activity and is in a place where he or she has a right to be; amending s. 776.013, PJ8.: applying presumption relating to the use of deadly force to the threatened use of deadly force in the defense of a residence and similar circumstances; applying provisions relating to such use of force to the threatened use of force; removing provisions relating to one?s duty to retreat prior to using force: amending s. 776.031, applying provisions relating to the use of force in defense of preperty to the threatened use of force; providing that a person who lawfully uses or threatens to use force does not have a duty to retreat if the person using or threatening the force is not engaged in an unlawful activity and is in a . place where he or she has a right to be; amending s. 776.032. applying immunity provisions that relate to the use of {ores to the threatened use of force; limiting immunity provisions to civil actions by the person, personal representative. or heirs of the person against whom force was used: amending s. 776.041. F-8.a applying provisions relating to Page 22 of 23 560 561 562 563 56? 565 566 567 568 569 570 571 572 573 57? 575 575 571 578 579 530 581 532 583 584 555 HOUSE 3111 no. as (2014) Amendment No. the use of force by an aggressor to the threatened use of force; providing exceptions; amending s. 776.051, providing that a person is not justified in the threatened use of force to resist an arrest by a law enforcement officer: amending s. 776.06. F.B., clarifying that the statutes relates to use of force by a law enforcement or correctional officer; creating s. 776.097 providing that a person is eligible to apply for a certificate of eligibility for expunction. notwithstanding the eligibility requirements, 1: the charging document in the case is not filed or is dismissed because it is found that the person acted in lawful'eelf-detenee pursuant to the provisions related to the justifiable use or force in ch. 776. F.S.: requiring a prosecutor, statewide prosecutor, or court to document andp retain such findings; amending e. 943.0585, requiring the Department of Law Enforcement to provide a certificate of eligibility for expunction. notwithstanding the eligibility requirements, to a person who has a written, certified statement tree a prosecutor or stateuide prosecutor indicating that the charging document in the case was not filed or was dismissed, because it was found that the person acted in lawful sel?- deiense pursuant to the provisions related to'the justifiable use or force in ch. 776,1F.s.; providing a penalty for knowingly providing false information on?e sworn statement; providing applicability: requiring the department to adopt rules; providing an effective date. Page 23 of 23 1 - From: CELLON.CONNIE Sent: Tuesday. February 15, 2011 12:21 PM To: Cunningham Katie . Cc: 'MPHammerlGiaolxom'; DEMERSHOLLY Subject: FW: 402 revised amendment Attaclu'nants: Negron 402 strike-all for community a?almdocx This is for YOU only. Don?t even know ifyou need it. It?s for our next stop. From: CELLON.OONNIE . Sent: Tuaday, February 15, 2011 12:19 PM To: Subject: RE: 402 revised amendment 10-4, From: DEMERS.HOLLY.528 Sent: Tuesday, February 15, 2011 12:16 PM To: Subject: RE: 402 revised amendment Yes please share with the House. I will run this by Senator Negron on the language and let you know when to barcode. From: CELLON.CONNIE Sent: Tuesday, February 15, 2011 12:08 PM To: DEMERS.HOLLY.528 atrium: FW: 402 revised amendment Holly-girl, This is the strike-all we prepared for the Community Affairs meeting. i am 99.996 sure that Senator Negron and Miss Marion talked about this over the weekend (Friday, maybe). All is well In her world if it Is in his. MAY share this with our House oounterpart at the staff-to-staff level? I'm pretty sure Miss Marion is looking to her (Katie Cunningham) to help out over there. Please see Sue?s advisory note below re: getting the amendment ready to go out of here for good. Don't forget the sponsor. Over and out. From: ARNOLD.SUE Sent: Tuesday, February 15, 2011 11:41 AM To: CELLON.CONNIE ??402 revlsw amendment Connie. When you send It to Holly, tell her to let me know when she needs It bareoded. tt?s in our Draft Ma nagement. not Commonity Affaits. Kind of like our drive. +4 o: vs 0 Florida Senate 2011 COMMITTEE AMENDMENT Bill No. CS for SB 402 LEGISLATIVE ACTION Senate House The Committee on Community Affairs recommended the following: Senate Amendment (with title amendment) Delete everything after the enacting clause and insert: Section 1. Section 790.33, Florida Statutes, is amended to read: 790.33 Field of regulation of firearms and ammunition preempted.? (1) as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and Page 1 of 8 2/15/2011 12:47:00 PM CJ.CA.01864 Florida Senate - 2011 COMMITTEE AMENDMENT Bill Nb. CS for SB 402 transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adonted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void. This .. -. - . -- . .- . . 2/15/2011 12:47:00 PM CJ.CA.01864 Florida Senate - 2011 COMMITTEE AMENDMENT Bill NO. CS for SB 402 (2) POLICY AND It is the intent of this section to provide uniform Page 3 of 8 2/15/2011 12:47:00 PM CJ.CA.01864 100 Florida Senate 2011 COMMITTEE AMENDMENT Bill No. CS for SB 402 firearms laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, ammunition. or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms. ammunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws. It is further the intent of this section to deter and prevent the Violation of this section and the violation of __ghts protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are knowingly passed in violation of state law or under color of local or state authority. (3) PENALTIES. - Any person who knowingly and willfully violates the Legislature occupation of the whole field of regulation of firearms and ammunition, as declared in subsection enacting or enforcing any local ordinance or administrative rule or regulation commits a noncriminal violation as defined in s. 775 08 and punishable as provided in s. 775. 082 and s. 775.083. The state attorney in the appropriate jurisdiction shall investigate complaints of noncriminal violations of this section and, where the state attorney determines that probable cause of a violation exists, shall prosecute violators in the circuit court where the complaint arose. Any state attorney Who fails to execute his or her duties under this section may be held accountable under the appropriate Florida rules of . Page 4 of 8 2/15/2011 12:47:00 PM CJ.CA.01864 101' 102 103 104 105 106 107 100 109 110 111 .112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 129 129 Florida Senate - 2011 COMMITTEE AMENDMENT Bill No. cs SB 402 professional conduct. If the court determines that the violation was knowing and willful the court shall assess a fine of not less than ??,000 and not more than $100,000 against the elected or appointed local;g9yernment official or officials or administrative agency head under whose jurisdiction the violation occurred. The elected or appointed local government official or officials or administrative agency head shall be personally liable for the payment of all finesy costs and fees assessed by the court for the noncriminal violation. Except as required by s. 16, Art. I of the State or the Sixth Amendment to the united States Constitution, public funds may_not be used to defend the unlawful conduct of any person-charged with a knowing and willful violation of this section. A knowing and willful violation of any provision of this section by a person acting_in an official capacity for any of the entities specified in this section or otherwise under color of law shall be cause for immediate termination of employment or contract or removal from office by the Governor. A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, ruleL enactment, order, orgpolicy promulgated or enforced in violation of this section may file suit in an appropriate court for declarative and injunctive relief and for all actual and consequential damages attributable to the violation. A court shall award the prevailing plaintiff in any such suit: 1. Attorney?s fees in the trial and appellate courts to be Page 5 of 8 2/15/2011 12:47:00 PM CJ.CA.01864 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 155 157 158 Florida Senate - 2011 COMMITTEE AMENDMENT Bill Nb. Cs for SB 402 determined by the rate used by the federal district court with jurisdiction over the political subdivision for civil rights aetione; 2. Liguidated damages of three times the attorney's fees under subparagraph and Litigation costs in the trial and appellate courts. Enterest on the sums awarded pursuant to this subsection shall accrue at 15 percent per annum from the date on which suit was filed. Where applicable, payment may be sedured by seizure of any vehicles used or Operated for the benefit of any elected Officeholder or official found to have violated this section if not paid within 72 hours after the order?s filing. (4) section does not prohibit: Zoning ordinances that encompass firearms businesses along with other businesses, except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in_conflict with this subsection and are prohibited; A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition. or firearm accessories issued to or used by peace offiCers in the course of their official duties; 1g) EXCept as provided in s. 790.251, any entity listed in paragraphs from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee?s official duties; or A court or administrative law judge from hearing and Page 6 of 8 2/15/2011 12:47:00 PM CJ.CA.01864 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 Florida Senate 2011 COMMITTEE AMENDMENT Bill Nb. CS for SB 402 SHORT created by chapter 87~23, Laws of Florida, this section sha?e?be?knewnaead may be cited as the And the title is amended as follows: Delete everything before the enacting clause and insert: A bill to be entitled An act relating to the regulation of firearms and ammunition; amending s. 790.33, clarifying and reorganizing provisions that preempt to the state the entire field of regulation of firearms; prohibiting specified persons and entities, when acting in their official capacity, from regulating or attempting to regulate firearms or ammunition in any manner except as specifically authorized by s. 790.33, by general law, or by the State Constitution; providing additional intent of the section; eliminating provisions authorizing counties to adopt an ordinance requiring a waiting period between the purchase and Page 7 of 8 2/15/2011 12 :47:00 PM 07.01.01.864 Florida Senate 2011 COMMITTEE AMENDMENT Bill No. CS for SB 402 188 delivery of a handgun; providing a penalty for knowing 189 and willful violatibns of prohibitions; providing for 190 investigation of complaints of violations of the 191 section and prosecution of violators by the state 192 attorney; providing that public funds may not be used 193 to defend'the unlawful conduct of any person charged 194 with a knowing and willful violation of the section; 195 providing exceptions; providing for termination of 196 employment or contract or removal from office of a 197 person acting in an official capacity who knowingly 198 and willfully violates any provision of the section; 199 providing for declarative and injunctive relief for 200 specified persons or organizations; providing fer 201 specified damages and interest; providing for seizure 202 of certain vehicles for specified nOnpayment of 203 damages; providing exceptions to prohibitions of the 204 section; providing an effective date. Page B'of 8 2/15/2011 12:47:00 PM CJ.CA. 01864 Front MPHammerloaolxom Scat: Monday. June 27, 2011 7:01 PM To: CELLON.CONNIE: Cunningham, Katie Subject First Amended Complaint -- Pediatricians 8! Brady Campaign Scott Attachments: attached Case Document 16 Entered on FLSD Docket 06/24/2011 Page 1 of 37 IN THE UNITED STATES FOR THE DISTRICT OF KOREA MIAMI DIVISION CIVIL ACTION NO. -22026-COOKEIIURNOFF Case Document 15 Entered on FLSD Docket 06/24/2011 Page 2 of 37 2. Mc?mmammbamm Physiciansando?mhealth theirhames. ?rmin?lehmnc. medicine. Momma, the mm: mm ?lumen-[y] and ?mm" on Itde?mneithmof?msatenns, Asam?gmheanhcam Case Document 15 Entered on FLSD Docket 0612452011 Page 3 of 37 4. ownership. self-cehsm?nirspeech. 5. Bymnic?ngtha American College of Physicians ("mom (counc?vgly, Mamas") on behalfofthnir more 3 Case Document 15 Entered on FLSD Docket Page 4 of 37 mm of the provisions of Florida Sm aedtinns 381.0126, 395.1055, 790.338 and 6. 7. 55220111812202. 8. 1391. 9. 10. 11. andaddictionmedicim. Fm?yMedicineandAddic?mMche. Heisn Case Document 15 Entered on FLSD Docket 06/24/2011 Page 5 of 37 12. She 13. malicine. Medicine. County. 14. 15. l6. 17. Case Document 15 Entered on FLSD Docket 06124/2011 Page 6 of 37 man. 18. Mimi-DudeCounw. ?wirlulth. l9. includingMian?-DdeCoumty. inmints. Case Document 15 Entered on FLSD Docket 0612412011 Page 7 of 37 20. mamas. as uihodzedby law; See Fla. Stat. 20.43, 381.026, 456.072, 456.073, 790.338. The Id 21. mummofmesmeeomm UnduFLoddalastMisanm-dof?n mammal: militias. See Fla. Stat. 20.42. 381.026, 395.1055, 790.338. These SecFla. Stat. ?790338(citingid. 395.1055 established standards and rules")): ciao rd. 39s.ooa(sxa) (m to the pm' hill of 22. pom See Fla. Stat. 453307, 458.309, ?7 Case Document 15 Entered on FLSD Docket 061242011 Page 8'01 37 458.331, 456.072, 790.338. ?meBoani has the powwm alleged violations oftlw u. 23. 24. o?cialcapacityas 25. 25. ?Manhuof?leBoud. 28. Mmbero?fth'oBoard. 29; capacityasManbmoftheBoard- 30. capacityastnbarof?loBoard. 31. MmbuoftheBoard. 32 MemberoftheBoard. Case Document 15 Entered on FLSD Docket 06/24/2011 Page 9 of 37 33. Manhaof?leBoald. 34 CansumuM?mba-o?thoani. 35. 36. Case Document 15 Entered on FLSD Docket 06/24/2011 Page 10 of 37 3001mm vindem 23. 39. Physicians,? 16 J. Am. 1, 4o Gunny?February 2003) 40. Prevantiwcareis apinmofthenmlneofmedm preferablemcme.? Dr. York mmganuamzs, 1964). Hahn SeaAmicanMedical [m1] inpatients, nolleagm, ?(Idem 41. l0 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 11 of 37 Such puvidedfmanmch?mandadomm This WWoncon?mminto amdthoodandbeyond?n'meeldedy. 42. Suchwumdingtobee??w?vc, msmkantomimd?armhpu?mt. pamphlet. WIEIMMSQIWPM- Pmicim mm, Policy 3.10.015 (adopted 11m 2001) (?The relationship betweenpa?ent 1] Case Document 15 Entered on FLSD Docket 061242011 Page 12 of 37 B. SafetyCounuingAboutl?n-rns 43. middemgmen??im . 44. Amdingwmemost ?lamendSm-killedby?raam (last visited Jun: 16, 2011); WISQARS Dyan Mortality W, 1999 - 2007. (lastviaitedlme 16,2011). ?rm. cheeJolmson. Practices, SIS. 1992-2002,? 27AM. J. #91,:de 173?81179 (2004). omusmdimes?m by Family Physicians,? Am BoardFamilyMtice 2003). 12 Case Document 15 Entered on FLSD Docket 08/24/2011 Page 13 of 37 45. Inmaincidun,an11-year-old MoCampbelL?Boy mumwm szsgom. 11111110111111.112- Fa:BM11a,Mmh27,2010. imideahomo. ShootsFrimd While Twirling Gun,?chNews, March 6, 2010. me1999 to 2007, 1,195 46. mmofwmmediminm' AIh?gIn&Bmge, 161Ammrmayrmriaeat44 (Jaw-FebruaryZOOS). 47. Program. 13 Case Document 15 Entered on FLSD Docket 06124/2011 Page 14 of 37 48. SeeHGanyGudn?rmd?nComn??eeon Injury, Violmce, Injury praenuchooscto cabinets. 49. If sepammlockedcabinets. so. l4 Case Document 15 Entered on FLSD Docket 06(24/2011 Page?15 of 3? prueuuchooaetokeepa 51. AMA, Wig?: ofnmAa-Wiuautdm, Policy H?l45.990.Ru. policies milable via (last visitedJuneTLZOll?. physicians and puiems. See AMA, "Raaolu?on 201,? Home ofDeIegute: Handbook, mm (2011). available at 13?14 (2011), available at 52. 15 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 16 of 37 Whoa-1 am visited June 21, 2011)). 53. 54. Such adviceto?lepa?m'pu?cuhrm 55. l6 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 17 of 37 lock? Id. ?90.1740; pmtactthe n?uyorfom childlm.? Id. 790.1730). A. Wu?ouonSpnehWby??mnGaglm 56. mummwwofmm 0m See Stat. s; 381.026, 395.1055, 790.3313, 456.07ztnnammded arm by csmsam 155). chesnot mm' ?In pumhmea andcan'ylng. SeaFlaSmL 790.065; 18 use. ?922(t). Beforepmohasinga l7 Case Documenl 15 Entered on FLSD Docket 06/24/2011 Page 18 of 37 Ememdow?ommcm Seeid 5g 790.01.790.06. Itinhusimposm'uelngallyto Fluids. 57. mam, whether gimm?yoireom'dedinwri?ng. See42 U.s.c. 13206-1 tad-7. msm. 456.0579) and 5 ss. Mimof?minutleastfommys. ?m?ymemberofthepa?em.? St. 7903389), The law carves Oman the patient's medical care or safety, orthe sa?ety ofo?m?.? Id. 790.3380), 59. 18 Case Document 15 Entered on FLSD Docket 0612412011 Page 19 of 37 relatedto?reannownaahip. Fla. Stat.?? 60. ownership.? See Fla. Stat. 1). Although the provision does not 61. - SeeFla. Su? Beemothem?anhgof??s prohibi?aninthe 62. limaednnder chapter 395,? See Fla. St. l9 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 20 of 37 B. 63. Seemsm 790.3386), 395.1055, 456.0720me 456.0720). Them Emotions include, but am not 54. other ma??m See FhStat. ?456.0?2. 65. pa?m?reomds. 20 Case Document 15 Entered on FLSD Docket 06/2472011 Page 21 of 37 66. The om.? 6_7. in?nma?onrdatmtanWorWd?mor?nm? Some Other ralevance. 68. 21 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 22 of 37 Anyindividmlpa?m 69. Mec?ngRepuLFlo?daBdofMed. anles.pdf(1ust visited Jun: 19, 2011). The?dcofen?ncamm?n?mu?mimmedim '70. safcgunownml?p. in?mmnion. andlossof?ves. 71. 22 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 23 of 37 safety. Plain??'s ?utano?mpa?entmuldwelcome. MW 72. The Mmemmsalmgu?m?lemimm?y?m. The 73. Asaresultof ?uePhysicim Gag Law, Plaimi?isDr. Band Dr. Judith Dr. Tommy 23 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 24 of 37 A. . 74. I?smwpa?enlaare speci?criak?ctms. guidanceto?wpa?ant?smeds. amongathem. Mbe?xmthe He?eqtu?yshmedwi?laduh 24 Case DocUment 15 Entered on FLSD Docket 06/2412011 Page 25 of 37 Hactofom?thad 75. . ?lms. Inthetwoweeb?om?n 25 Case Document 15 Entered on FLSD?Docket 06/24/2011 Page 26 of 37 B. 76. And,asshedoea repmag?nsthum?lnBoudochdicm Bmeof??sfeu?mtshemaybemusedof 26 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 27 of 37 patient?smfaty. 77. 10.2011. 78. - - Dr. Case Document 15 Entered on FLSD Docket 06/24/2011 Page 29 of 37 ques?onsWhenpa?mdidnotmondma D. WMWIUDLMMEBW '81. Mmaover,Dr. ?mmsin?ldrhomos. Sackfeels 29 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 30 of 37 pu?am. 82. Dr.Sackbelicvesthathismodi?ed Case Document 15 Entered on FLSD Docket 06/24/2011 Page 31 of 37 nervous a patient who heard about the legislation might ?le a complaint against her with the BoardofMedicine. She con?nuestobea?'aidto usethe questionnaire, forfearofviolatingthe law orhavingapatientaccuse herofharassment. Withoutthe questionnairetotell herwhich patients patients and their parents now leave her o?ice without a sufficient understanding of the grave risks posed by ?rearms and the knowledge to mitigate those risks. She still advises some of her patients abo'utsafe ?rearmpracticegbeceme she and well-being but is extremely careful about how she words her advice, keeping it very brief and phrasing it in a hypothetical fashion. She feels that such cemored advice is a less e?'ective subs?tute for the in-depth and speci?c preventive healthcare information that she gave before the existence of the law. 84. Plainti?' Dr. ox-Levine believes the Physician Gag Law has adversely a??ected the quality ofcarethat she isableto giveherpa?emabecause ithaspreventedher?om providing what she believes to be the most effective, patient-speci?c counseling regarding mitigatingthepotential heal?rrisks associated with?rearms. Inthetwo weeks ?omthe signing ofthe Physician Gag Law on June 2, 2011 to June I6, 2011, Dr. Fox-Levine?s elimination of the ?rearm question from the preventive health questionnaire she employs. during well-child visits, and the concomitant provision of less patient-speci?c preventive care with respect to ?rearms, has stewed her treatment of 125 ofher patients. F. Imparable Harm Sustained by Dr. Gutierrez and His Patients 85. Dr. Gutierrez has also been forced to censor himselfbecause of?le Physician Gag Law. Preventive health and safety counseling is also an essential part of Dr. Gutierrez?s practice, and be routinely counsels patients about e??ective ways to minimize a variety of health and safety 31 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 31 of 37 BomdofMedidnc. ?manequea?onnairemw?hnwhich pmm??rmehm?o?ww?nuamm?mm Shes?lladvisessdmeoflm Wofmelaw. s4. hathetwoweeks?nm?wsis?ns mm is, 2011, Dr. Fax-Levihe?suunnm?mof?n F. as. law. 31 Case Document 15 Enteted on FLSD Docket 06/24/2011 Page 32 of 37 swimmingpoolld'etand?matmafuy. Oneqncs?ononthe Ifapa?emOrpment pa?m?modicalm ques?unnaim?irnow. PhysicimGagIN. 86. 32 Case Document 15 Entered on FLSD Docket 08/24/2011 Page 33 of 37 mans?mn?usepa?ems?pm. s7. Hebelieveshisoumaalingon?lis Neveu'?mless, gimme risk ofbeing zoomed ofvioln?ngthe PhysinimGagLaw, Dr. Gutimmz withhos?lityto?wques?on. 88. Members FAFP, imlmh'ng Dr. (FAFP), Dr. SW (FAAP), Dr. (FAAP). Dr. swam), Dr. Fox-[mine (FAAP), Dr. 33 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 34 of 37 Inalnidpationof unconstitutional. COUNT I: VIOLATION OF 42 U.S.C. 5 1983 89. Wl?mMSSumough??lyuchuein. 90. I?lmFiutAnamdment 91. 92. By abridgingthe ?eedomof Plaintiffs Dr. Dr. Scheme-1, Dr. 34 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 35 of 37 widl?reauns; By?lilingtogive Dr. Dr. 3mm. Dr. Sack, Dr. Fox-Levine, Dr. Gutiqmz. mummy ofPlnimi?is FAAP, FAFP. (A) totthons?nnionoftheUnitedSms; Law; (C) pursuant 11342 U.S.C. 1988, and reasonable expenses: and (D) 35 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 36 of 37 2011. Rupect??lyainm'md, WM Bdwm'dMMullhas HalManas(ofcomsel) Fkn-IdaBarNos. 0863920 0853011 Astimrmga Davis Mullins (t ?reman, EA. 701 mu Am 16? Floor Miami, Flodda33131-2847 Tel: (305) 372-8282 Fax: (305) 372-8202 a ?and? -Bruce.S.Manhdun,Jr. DouglasI-I. I-IaIlwani?D?aneicr AugustineM. Ripe JuliaMwais ROPE-S 8c GRAYLLP 7001211: Suib 900 le?ngtanD.C. 2005 Tel: (202)508-4600 Fax: 202 383 8332 bmeemhdm?opeam.eom 41nd- Jonathan B. Lowy Daniel R. Vice (Pro hac vice applications pending) BRADY CENTER TO PREVENT GUN VIOLENCE In?lAc?on P105011: 125 StreetNW, Suite 1100 Wad?ngtan, DC 20005 Tel: (202) 289-7319 Fax: (202) 898-0059 51W ms Comeubr PM 36 Case Document 15 Entered on FLSD Docket 06/24/2011 Page 37 of 37 lmEBYCEmemenmll,mmedmmy Cham?eMMJr? JmVaiLAmmxg?lemenl Of?ceof?leAMmeclale SuitePL 01, Thecapiml Tallahame: Florida 32399-1050 $101521th By: Edward M. Mullins (Fla. BarNo. 863920) 37 From: MPi-iammerlaiaotcom Sent: Thursday, January 27, 2011 6:22 AM To: Cunningham. Katie Subject: Fwd: NRA City of South Miami Appeal Brief Attachments: NRA City of South Miami Appeai Brief IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT CASE NO. 3D02-277S CIRCUIT COURT CASE NO. 00-17530 CA 09 NATIONAL RIFLE ASSOCIATION OF AMERICA, INC, UNIFIED SPORTSMEN OF FLORIDA, INC, W. DAVID TUCKER, SR, and JOHN DOE, Appellants v. CITY OF SOUTH MIAMI, Appellee BRJEF OF THE APPELLANTS CARLOS A. VELASQUEZ Florida Bar No. 755982 MONTERO, FINIZIO, VELASQUEZ REYES 200 Southeast 9? Street Fort Lauderdale, Florida 33316 (954)767-6500 Counsel for Appellants STEPHEN P. HALBROOK 10560 Main St, Suite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Appellants 'Pro Hac Vice TABLE OF CONTENTS TABLEOFCIIATIONS . . .. . . . .. . .. . ..ii STATEMENTOFTHECASE . . .. . .1 STATEMENTOFFACTS . . . . . ..2 SUMMARYOFARGUMENT . .. .. . .. .4 ARGUMENT .. .. .. .. . . . 9 StandardofReview .. . .. .9 I. . .. 11. THE CITY AND ITS COUNSEL KNEW OR SHOULD HAVE KNOWN THAT THE ORDINANCE WAS BY STATELAW - 16 111. THE CITY MADE DISCOVERY DEMANDS AND ASSERTED DEFENSES FOR THE PURPOSE OF UNREASONABLE DELAY . . . 25 Iv. FEES SHOULD BE AWARDED FOR THE ENTIRE CASE, INCLUDING WORK IN THE CIRCUIT COURT AND THIS COURT . .. CONCLUSION . . . . . .. . 32 TABLE OF CITATIONS CASES Page Acme Specialty Corp. v. City of Miami, 292 So. 2d 379 (Fla. 3rd DCA 1974) . . 18 Alligator Enterprises, Inc. v. General Agents Insumnce Co., 773 So. 2d 94 (F In. 5th DCA 2000) 20 Allstar Builders Corp. v. Zimmerman, 706 So. 2d 92 (Fla. 3rd DCA 1998) . 31, 32 Bittennan v. Bitterman, 714 So.2d356 (Fla. 1998) . .. .. . l3 Inc. v. Hen'on, 828 So. 2d 414 (Fla. DCA 2002) . . . 16 Castaway Lounge of Bay County, Inc. v. Reid, 41 1 So. 2d 282 (Fla. 1st DCA 1982) . . 14 Forum v. Boca Burger, Inc., 788 So.? 2d 1055 (Fla. 4th DCA 2001), review granted, 817 So. 2d 844 (Fla. 2002Freedom Commerce Centre Venture v. Hanson, 823 So. 2d 817 (Fla. DCA 2002) 9, 16 Gahn v. Holiday Prop. Bond. Ltd, 826 So. 2d 423 (Fla. 2002) 10 Gibbs Construction Co. v. S. L. Page Corp, 755 So. 2d 787 (Fla. 2nd DCA 2000) . . . 9-10 Gloste'r v. State, 758 So. 2d 744 (Fla. 3rd DCA 2000Enterprises v. Plantas Decorativas, 623 So. 2d 821 (F1a.5thDCA'l993) . ..15 McLaughlin v. State, 698 So. 2d 296 (Fla. 3rd DCA 1997NAACP v. Alabama, 357 US. 449 (1958NRA v. City of South Miami, 774 So. 2d 815 (Fla. 3rd DCA 2000Czty of South Miami, 812 So. 2d 504 (Fla. 3rd DCA 2002) 10, 17, 18, 23, 27 Northern Coats v. Metropolitan Dade County, 588 So. 2d 1016 (Fla. 1991) . . . . . 5,14 0'Graafy v. Potash, 824 So. 2d 904 (Fla. 3rd DCA 2002Penelas v. Arms Technology, Inc., 778 So. 2d 1042 (Fla. 3d DCA), .. . .. . . .18 Rinzlefv.Carson,262 So.2d661 (Fla. 1972) .. .. .. . 17,18 San Diego County Gun Rights Committee v. Raw, 98 F.3d 1121 (9th Cir. 1996Belleair Group, Inc, 759 So. 2d 23 (Fla. 2nd DCA 2000Standard Jury Instructions 2n Criminal Cases (97-1), 697 So. 2d 84 (Fla.1997) . ..6,20 Tiaylor v. State, 596 So. 2d 957 (Fla. 1992United States Automobile Association v. Phillips, 775 So. 2d 921 (Fla. 2000) . 31 Visoly v. Security Pacz?c Credit Corp, 768 So. 2d 482 (Fla. 3rd DCA 2000) . . 14 William Lehman Leasing Corp. v. Joseph..13 Corp v. Person, 622 So. 2d 1098 (Fla. 2d DCA), rev. denied, 618S0. 2d212(Fla. 1993). . . . 27 CONSTITUTION Fla. Const, Article 1, 8 STATUTES AND ORDINANCES Fla. Stat. 1601(4). Fla.Stat.?57.105 Fla. StatFla. Stat. 57.105(2) . . . Fla. Stat. 86.021 Fla. Stat. 790250), (4) Fla. sun. 790.33 Fla. Stat. 790.33(1) Fla. Stat. . .. . City of South Miami Ordinance 14-00?1716 . RULES Fla. Rule of App. Proc. 9.400(b) iv .22 .22 . . passim 8,11,14, 30,31 12,15 .-. passim passim 6, 7, 21, 22, 23, 24 passim 8, 30, 31 STATEMENT OF THE CASE On July 20, 2000, National Ri?e Association of America, Inc. Uni?ed Sportsmen of Florida, Inc. SF W. David Tucker, Sr., and John Doe ?led a complaint seeking a declaration that Ordinance 14?00?17] 6 of the City. of South Miami, which required trigger locks on ?rearms, was preempted by, inter alia, Fla. Stat. 790.33. Appendix (hereafter 7. They also sought injunetive relief against enforcement of the Ordinance. The City sought discovery of the identi?es ofall NRA and USF members in the City, information about whether they were in compliance with the Ordinance, and documents concerning children who lived at or regularly visited their homes. A. 44- 45. The circuit court quashed those discovery demands but ordered disclosure of the identities of ten NRA and USF members. This Court granted petition for a writ of certiorari to quash the order, holding that the member identities are protected by the right to privacy. NRA v. City of South Miami, 774 So. 2d 815 (Fla. 3" DCA 2000); Thereafter, the circuitcourt granted the City?s motionfor summary judgment on the basis that the case was not ripe because there had been no prosecutions. It also denied motion for an injunction against enforcement of the Ordinance. A. 181-82. This Court reversed, holding that the case was ripe for review and that the Ordinance was preempted by Fla. Stat. 790.33. NRA v. City afSauth Miami, 812 So. 2d 504 (Fla. 3" DCA 2002); A. 240-43. On remand, the circuit court entered a ?nal order on May 29, 2002, declaring the Ordinance null and void and previding that an injunction would issue unless the City repealed the Ordinance by a speci?ed deadline. A. 345. On May 3, 2002, plaintiff's ?led a motion for attorney?s fees against the City and its counsel in the circuit court pursuant to Fla. Stat. 57.105. A. 244. On September 24, 2002, the circuit court entered an order denying the motion far attorney's fees. A. 410. This appeal followed. STATEMENT OF FACTS Ordinance No. 14-00-1716 was adopted by the Mayor and City Commission of the City of South Miami on June 6, 2000, and took effect immediately. A. 1-2. It amended 15-7 of the City of South Miami Code of Ordinances to provide: Locking devices required for ?rearms. (1) ?Locking device? means a device that when installed on a ?rearm and secured by means of a key or a mechanically or electronically operated combination lock prevents the ?rearm from being discharged without ?rst deactivating or removing the device. (2) If a person stores or leaves a ?rearm at any location where the person lmows'or reasonably should know that aminor might gain access to the 2 ?rearm], the person shall secure the ?rearm with a locking device except when it is carried on his or her body oris located within such close proximity that the person can retrieve the ?rearm and prevent access to it by a minor. (3) A violation of this section is a breach of a duty of safety owed by the person who owns or posesses the ?rm to all minors who might gain access to it and to the general public. (4) A violation of this section is punishable as a class civil violation. No courtesy notice shall be issued to the violator.? A Class violation is punishable with a $250 ?ne for a ?rst offense and a $500 ?ne for a second or Subsequent offense. 3 SUMMARY OF ARGUMENT Northern Coats v. Metropolitan Dade County, 1991). 2. This Comt voided the Ordinance based on Fla. Stat. provides in pertinent part: 588 So. 2d-1016, 1017(Fla. BMDCA 790.33, which possession, and t?ansportation thereof; to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any and void. . . pn'or case law was necessary to know that the law preempts all ordinances which regulate ?rearms. In 790.330), ?the Legislature hereby declares that it is occupying the whole ?eld of regulation of ?marms,? and the Ordinance cannot ?nther. language ?including the purchase, sale, transfer, taxation, manufacmre, ownership, possession, and transportation thereof.? Yet ??includes? is a term of The City never once referred to which declares its intent ?to The Attorney General Wrote an opinion and ?led amicus briefs in this proceeding arguing that the Ordinance was valid. Not once did the Attorney General 6 quote the words of 790.330) that ?the Legislature hereby declares that it is ocaupying the whole ?eld of regulation of ?rearms,? and not once did he acknowledge the existence of Instead, the Attorney General asserted that ?the intent? of 790.33 is to preclude ?interfering with the right of the people to bear aims.? To the contrary, explicitly declares its ?intent . . . to provide uniform ?rearmS laws? by nullifying all ordinances which ?regulate? ?rearms. In sum; the City offered no analysis of how it could defend the Ordinance in good faith in the face of the wording of ?790.33(l) that ?the Legislature hereby declares that it is occupying the'whole ?eld of regulation of ?rearms,? and of that all ordinances ?which regulate ?lm-ms" or ?relating to ?rearms? are null and void. But for the City?s blatant attempt to nullify 790.33, none of the litigation in this case would have been necessary. Accordingly, plaintiffs-appellants are entitled to recovery of all attorneys fees generated in the circuit court and in this Court. jurisdiction. Counsel for the City failed to bring to the court?s attention the eXplicit court shall award a reasonable attomey?s fee to be paid to the prevailing party . . . Plaintiffs were not prevailing parties until this Court rendered its decision, and thus pmperly ?led their motion to recover attorney?s fees for the entire case in the circuit court. Fla. Rule of App. Proc. 9.400(b) did not require that plaintiffs ?le a fee motion 8 amount of fees. ARGUMENT most often in regard to the amount of an award rather than the actual entitlement to an aWard.? Gibbs Constr. Co. v. s. L. Page Corp, 755 So. 2d 787, 790 (Fla. 2M DCA I. ENTITLEMEN TO FEES UNDER 57.105 On? March 20, 2002, this Conn ruled that this case is ripe for review and held expenses on the basis of Fla. Stat. 57.105, which provides in perihent part: (1) Upon the court?s initiative or motion of any party, the court shall award a reasonable attorney?s fee to be paid to the prevailing party in equal 'amounts by the losing party and the losing party?s attorney on anyplaim or defense .at any time during a civil or action in which the court ?nds that the losing party or the losing party?s attorney cw or should have knovm that?a claim or defense when initially presented to the court or at any tithe before trial: Was not supported by the material facts necessary to establish Would not be supported by the application of then-existing law to those material facts. HOWever, the losing palty?s attorney is not personally msponsible if he or she has acted in good faith, based on the . A v. Bo?a Burger, Inc., 788 So. 2d 1055 (Fla. 4" DCA 2001),4 the 1999 justiciable issue to a reasonable attomey, counsel also is culpable and The statute clearly makes ?good ?fth? an avoidance of the presumptive assessment of fee against both attorney and client, however. Fees Must be assessed against counsel as provided by stamte unless the attorney Inc. v. Hermn, 828 So. 2d 414 (Fla. l"t DCA 2002).5 The same is the case here. II. THE CITY AND ITS COUNSEL KNEW 0R SHOULD HAVE KNOWN THAT THE ORDINANCE WAS PREELIPTED BY STATE LAW PRBEMPTION. - Exc ept as expressly provided by general law, the Legislature hereby declares that it is occupying the whole ?eld of regulation of Exams and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. . . (3 POLICY AND INTENT. - a 16 It is the intent of this section to provide uniform ?rearms laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jm'isdictions other than state and federal, which regulate ?rearms, ammunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to ?rearms, ammunition or components thereof unless speci?cally authorized by this section or general law; and to require local jurisdictions to enforce state ?rearms laws.? MU v. City of South Miami, 812 So. 2d at 504-05; A. 241. (EN. that the Ordinance was a regulation ?of ?rearms, no person could reasonably belieye that the Ordinance was not preempted by the above statute. A?er ?nding the case to be ripe, this Court needed only one sentence to issue its holding on the merits: ?We also hold that the City?s ordinance no. 14-00-1716 is null and void as it is in con?ict with section 790.33, Florida Statutes.? 812 So. 2d at 506; A. 243. While no case law on the 790.33 existed when the Ordinance was passed,6 However, dispositive case law did exist on another state ?rearms preemption law, Fla. Stat. (4), which the City ignored. Kinder v. Carson, 262 So. 2d 66], 667-68 (Fla. 1972), held a ?rearm ordinance to be preempted by this provision based on the following rule with the City utterly ignored here: an ordinance not con?ict with any controlling provision of a state statute, and if any doubt exists as to the extent of a power attempted to be exercised which may a?'ect the operation of a state statute, the doubt is to be resolved against the ordinanceand in favor of the statute. A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has 17 the statute?s language is so clear that no judicial construction was necessary to know that it preempts all ordinances which regulate ?rearms. This Court noted in its decision: In Pandas v. Arms Technology Inc.,_ 778 So. 2d 1042 (Fla. 3d DCA), rev. denied, 799 So. 2d 218. (Fla. 2001), this court specifically stated ?aat the legislamre, through section 7 90.33, has indeed expressly preempted the entire ?eld of ?rearm and ammunition regulation.? . NRA, 812 So. 2d at 505; A. 24142 The City received. due notice by the language of 790.33 that the Ordinance was void, and did not need a court decision to repeat what the statute already stated. The language of 79033 so clearly precludes the Ordinance that the City?s defense cannot be considered a good faith argument for the extension, modi?cation, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. To the contrary, it was an attempt to nullify the law. In 790.330); ?the Legislature hereby declares that it is occupying the whole ?eld of regulation of ?rearms,? and the Ordinance cannot expressly forbidden. Id. at 66 7-68 (emphasis added). See also Acme Specialty Corp. v. City ofMami, 292 So. 2d 379, 380 (Fla. 3" DCA- 1974). ?7 Penelas was decided on February 14, 2001, but the Appellee City of South Miami?s Answer Brief ?led months later failed to acknowledge the decision. 18 reasonably be characterized as not being a regulation of ?rearms. The Ordinance includes a preamble which ?recognize[s] that the Florida Legislature preempted the ?eld of regulation of ?reanns as provided by sec. 790.33, Florida Statutes, and that it Speci?ed the subject matter over which municipalities are excluded ?'om enacting ordinances. Providently, by specifying the subject matter that municipalities may not regulate the Florida Legislature omitted mention of regulation of the storage of ?rearms-? A. 1. That was the City?s only defense on the merits. The City unreasonably argued that the general clause in 790.330 that the legislature occupies ?the Whole ?eld of regulation of ?rearms? is negated by the ?lrther language ?including the purchase, sale, transfer, taxation, mamxfacture, ownership, possession, and transportation thereof.? The City argued: ?The listed subject matter ?omits mention of the storage of ?rearms.? Response of City of South Miami to Plaintiffs? Motion for Preliminary Injunction at 4. This argument was ?iifolous on its face. ??Includes? is a term of enlargement, not limitation. . . . To ?include? means ?to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate . . . McLaughlin v. State, 698 So. 2d 296, 298 (Fla. 1997). Further,?includes but shall not be 19 limited to? is ?a redundancy? with the same meaning as ?includes.? Id. at 298 n.5. Equally frivolous was the City?s argument that ?storage is not possession? and that ?there is no indication in section 790.33 of legislatiye intent to include the term "storage? Within the meaning of the term ?possession.?? Response of City of South Miami to Plaintiffs? Motion for Preliminary Injunction at 4. To regulate the ?storage? of ?rearms is to regulate the ?ownership [and] possession? thereof, which is forbidden by 790.33 (1 Section 2 of the Ordinance regulated all instances of ownership and possession in which a person ?stores or leaves a ?rearm at any location? in which the ?rearm is neither ?carried on his or her body [n]or is located within such close proximity that the person can retrieve the ?rearm.? Indeed, 3 of the Ordinance itself recognized: violation of this section is a breach of a duty of safety owed by the person who owns or possesses the ?rearm . . . Storage is simply one form of possession of a ?rearm. ?If a thing is in a place over which the person has control or in which the person has hidden or concealed it, ?Include is used most before an incomplete list of components: The ingredients of the cake include butter and egg yolk. [Note:] No one could successfully contend that the cake comprised only butter and egg yolk.? Alligator Enterprises, Inc. v. General Agents Insurance Co., 773 So. 2d 94, 95 n.1 (Fla. DCA 2000). 20 it is in the constructive possession of that person.? Standard Jury Instructions in Criminal Cases (97-1), 697 So. 2d 84, 87 (Fla. 1997). If the City was correct, a violent felon could ?store" a machine gun with a nigger lock and not be guilty of ?possession? thereof under Florida law. The argument is frivolous on its face.. Even aside harm the above, declares its intent ?to provide uniform ?rearms laws in the state? and to nullify all ordinances which ?regulate ?rearms? or ?relating to ?rearms? and ?components thereof.? Any municipal ordinance per se negates ?uniform ?rearm laws in the state,? and this Ordinance clearly ?regulated? and ?related to? ?rearms as well as components trigger locks).m In this entire litigation the City failed tomake a single reference to much less to explain how or why the Ordinance did not violate that provision. To refuse even to acknowledge the existence of directly applicable law cannot be a good faith argument for the extension of existing law. The Attorney General wrote an opinion and ?led amieus briefs in this See Gloster v, State, 758 So. 2d 744 (Fla. DCA 2000) (?defendant was in constructive possession of a gun at the ?lst Street address?). 1" The City moved to strike the allegation in the Complaint that ?components thereof include a locking device which is installed on a ?rearm such as that de?ned by the Ordinance? on the basis: ?States a legal conclusion without any predicate allegations of fact.? Motion to Dismiss Complaint for Lack of Standing and to Stay Proceeding, to Strike Redundant Claims, to Strike Impertinent Allegations, A. 36. This was typical of the City?s denial of the obvious. 21 proceeding arguing that the Ordinance was valid. Not once did the Attorney General quote the words of 790.3 3(1) that ?the Legislature hereby declares that it is occupying the whole ?eld of regulation of ?rearms.? Also l?re the City, not once did the Attorney General acknowledge the existence of Instead, the Attorney General asserted that ?the intent or purpose of the statute 790.33 is to preclude local government from interfering with the right of the people to bear arms?? Advisory Legal Opinion AGO 2000?42 (2000); A. 5. To the contrary, explicitly declares its ?intent. . . to provide uniform ?rearms laws? by nullifying all ordinances which ?Tegulate? ?rearms. Of course, that is the provision that neither the Attorney General nor the City acknowledged even to exist. The City cannot argue that it reasonably relied on the opinion of the Attorney General. The Ordinance which already included in its preamble what would be the ?1 The Attorney General has a duty to defend, not to nullify, State law. He or she must ?appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be . . . in anywise interested . . . r? Fla. Stat. 1601(4) (emphasis added). '2 This disregarded that 790.33 seeks to protect the ?possession? or keeping, not just the bearing, of arms, and that the Ordinance regulated the keeping, not the bearing, of arms. This distinction is clear in the Declaration of Rights of the Florida Constitution, Article 1, 8, which provides: ?The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed . . . ?When Called upon to decide matters of fundamental rights, Florida?s state courts are bound . . . to give independent legal import to every phrase and clause contained therein.? Traylor v. State, 596 So. 2d 957, 962-63 (Fla. 1992). 22 City?s ultimate litigation argument? was passed on June 6, 2000, while the Attorney General issued his opinion on July II, 2000. Nor can the City argue for the reasonableness of the Attorney General?s Opinion based solely on its letterhead without any mention of its contents. The blatant fact is that, for all the reams of paperwork generated by the City andthe Attorney General in this case, neither could find space actually to quote, even once, the full text of? 790.330 particularly that ?the Legislature hereby declares that it is occupying the whole ?eld of regulation of ?rearm,? or even to mention the mere existence of muCh less to quote that provision. In the court below, the City argued that its defense of the Ordinance was reasonable because, atterits enactment, Miami-Dade County and Palm Beach County enacted similar ordinances. Once again, this fails to address the reasonableness of such ?rearm regulations in light of the language of 790.33. This Court?s opinion holding that this case was ripe and invalidating the Ordinance includes the following: Here we have various well-meaning litigants eye-ball to eye-ball across counsel table, the City wondering whether its ordinance has been preempted or whether it can enforce its own collective will oyer ?rearms, others wondering Whether they are going to be illegally prosecuted by the City come next dove hunting season, and the Florida Attorney General wondering whether the judiciary ?will agree with his opinion on municipal regulation of ?rearrns . . 23 NRA, 812 So. 2d at 505; A. 242-43. While this statement is a tribute to the cordiality of counsel in presenting this case to the Court, it does not purport to address the narrow issue here. That issue is whether the City knew or should have known that its basic defense was not supported by the application of then-existing law to the material facts, its argument that a regulation of ?rearms storage is not a ?regulation of ?rearms," including a regulation of the ?ownership [or] possession? thereof, and does not ?regulate ?rearms" or ?relat[e] to ?rearms,? in the language of 790.33. When this case was remanded and the motion for attorney?s fees was ?led, the City rested on a single argument for why its defense of the Ordinance was in ?good faith?: ?The City?s position was that the storage of ?rearms was not referenced in 790.33, Fla. Stat, and, hence, the ordinance was a lawful enactment.? Defendant?s Response to Plainti??s? Motion for'Attomeys? Fees, A. 354.13 The City offered no analysis ofhow it could defend the Ordinance in good faith in the face ofthe wording of ?790.33(l) that ?the Legislature hereby declares that it is occupying the whole ?eld of regulation of ?reanhs,? and of that all ordinances ?which '3 Similarly, at oral argument on the fee motion, the City avoided a single mention of the language of ?7_90.33 and argued simply that ?in terms of the defense of the ordinance, simply put, storage was not mentioned in the statute.? Transcript of Hearing, Circuit Court, July 31, 2002, A. 395. See also 111., A. 398-400 (same argument}. 24 regulate ?rearms? or ?relating to ?rearms? are null and void.? But for the City?s blatant attempt to nullify 790.33, none of the litigation in this case would have been necessary. Accordingly, are entitled to recovery of all attorneys? fees generated in the circuit court and in this Court. THE CITY MADE DISCOVERY DEMANDS AND ASSERTED DEFENSES OR THE PURPOSE OF UNREASONABLE DELAY The following demonstrates that on two procedural matters, the City fell below acceptable standards. Yet an if the City had not done so, entitlement to attorney?s fees for the entire case would still exist because none of this litigation would have been necessary had the City respected 790.33. First, the City sought to prevent this case from being heard on the merits by asserting unwarranted discovery demands for the purpose of unreasonable delay. Speci?cally, it ?led discovery demands that plaintiffs National Ri?e Association and Uni?ed Sportsmen ofFlorida, which together have hundreds of members in the City, disclose the names ?and addresses of their members, identify those who were taxpayers, ?any and all documents? about members? ?children who live at . . . 0r who regulady visit at the location,? whether ?rearms were stored in compliance with the Nor does the order denying attomeys? fees provide any analysis or even suggestion of how the defense could be in good faith in View of that language. 25 ordinance and how they were stored, and similar highly con?dential information.? The circuit court quashed all of these broad document demands, except that it ordered the disclosure of the names and addresses often NRA and USF members.? This Court quashed that discovery order on the grounds of privacy rights and freedom of association. NRA v. City of South Miami, 774'So. 2d 815, 816 (Fla. 3" DCA 2000), citing NAACP v. Alabama, 357 US. 449, 462 (1958). The City?s original demands would have violated those rights in afar more excessive manner, and were ?led to. create delay and to dissuade the associations ?'om proceeding with the litigation. Examples of the discovery demands are as follows: 1. Any and all lists, memoranda, or other documents re?ecting . . member-3? names and addresses who reside in the City of South Miami. 2. Any and all lists, memoranda, or other documents re?ecting NRA members who are taxpayers of the City of South Miami . . . 7. Any and all lists, memoranda, or other documents re?ecting NRA members who reside in or are taxpayers of the City of South Miami, who own ?rearms, and who have children who live at the location where ?rearms are stored by the member or who regularly visit at the location. Notices of Deposition Duce?s Tecum served on August 9, 2000, A. 50-51 . NRA, 774 So. 2d at 816; A. of Hearing, Sept. 15, 2000, 22-23, (modifying order). 96. The circuit court?s rulings are in Transcript 26-29; Transcript of Hearing, Oct. 25, 2000, 7 26 Second, ?mher to prevent this case from being heard on the merits, the City as?~ :rted the defenses of lack of standing and ripeness forthe purpose of unreasonable delay. The order the City drafted for the circuit ecurt to sign dismissing this case for lack of ripeness cited no Florida case, and instead cited an inapplicable case from a foreign jurisdiction, San Diego County Gun Rights Committee v. Reno, 98'F.3d 1121' Cir. 1996). Order Granting Defendant?s Motions for Summary Final Judgment, April 6, 2001, A. 181.. Reversing and holding that the case was ripe for review, this Court quoted Fla. Stat. 86.021 as follows: ?Any person . . . whose rights . . . are affected . . . by municipal ordinance . . . may have determined any question of . . . validity arising under such . . . municipal ordinarice . . . and obtain a declaration of rights . . . thereunder.? NRA, 812 So. 2d at 505; A. 242. Counsel for the City, who represents the City routinely and is an expert in municipal law, never brought this provision which squarely bears on challenges to municipal ordinances -- to the attention of the circuit court or this Court Nor did the City cite any of the case law that 86.021 is liberally construed. This Court ?irther cited and quoted the following fromX Corp. v. YPerson, 622 So. 2d 1098, 1100 (Fla. 2d DCA), rev. denied, 618 So. 2d 212 (Fla. 1993): The goals of the Declaratory Judgment Act are to relieve litigants 27 of the common law rule that a declaration of rights cannot be adjudicated unless a right has been violated and to render practical help in ending controversies which have not reached the stage where other legal relief is immediately available. To operate within this sphere of anticipatory and preventive justice, the Declaratory Judgment Act should be liberally construed. A specialist in municipal law such as City counsel here knew or should have known about Fla. Stat. 86.021 and the case law construing it. Counsel had a duty to bring such authorities to the attention of the circuit court. The City argued below that'it has no liability under 57.105 because the circuit court dismissed this action on ripeness grounds. Yet even if its ripenessarguments were reasonable, that does not preclude a fee recovery for the City?s passage and defense of the ordinance on the merits. Moreover, on the ripeness issue, the City never explained why it failed to bring to the circuit court?s attention the provision of the Declaratory Judgment Act which explicitly. sets a liberal standard for actions regarding municipal ordinances, see Fla. Stat. 86.021, and instead relied on a precedent from a foreign jurisdiction. The fact that the circuit court granted a tiny modicum of the City?s discovery request (which this Court reversed) and granted its motion to dismiss on ripeness grounds (which this Court also reversed) does not insulate the City and its comsel from an attomey?s fee award. Like here, the Court of Appeal in Forum v. Baca 28 Burger, 788 So. 2d 1055, reversed the trial court?s decision dismissing the complaint In seeking dismissal of the complaint and opposing an amended complaint, ?defense counsel argued case authority from a federal trial court in Michigan.? Id. at 1058. Forum nomd that ?neither argument could be made in good faith. The Flurida' procedural rules are not controlled by interpretations of federal rules by federal trial courts in Michigan.? Id. ?Obviously the trial judge was misled by the argument of defense counsel. . . Id. at 1059. Those factors also existed here. Forum held that ?[t]here is no possible view of the law that would support defense counsel?s? legal arguments, and further ?the conduct of defense counsel cannot possibly turn on any representations of their client or for a good faith modi?cation of existing law." 1d. The court explained: We do not accept the notion that outcomes should depend on . . who is able to misdirect a judge. American civil justice is so ~designed that established rules of law will be applied and enforced to insure that justice be done. Such a system is surely defective, however, if it is acceptable for lawyers to ?sugges a trial judge into applying a ?rule" or a ?discretion? that they knowuor should know-is contraryto existing law. Even if it hurts the strategy and tactics of a party?s counsel, even if it prepares the way for an adverse ruling, even though the adversary has himself failed to cite the correct law, the lawyer is required to disclose law favoring his adversary when the court is obviously under an erroneous impression as to the law?s requirements. Id. at 1062. As is the case here, ?defense counsel plainly attempted to lead the trial judge 29 to a result that plaintiff was needlessly forced to appeal.? Accordingly, Forum held: ?We therefore confront the statute?s new command and aWard fees from defendant and defense counsel for their conduct in this case both in the trial court and in this court where they have persisted in trying to uphold this patently erroneous decision.? Id. at 1063. Accordingly, plaintiffs-appellants are entitled to recovery of attorney?s fees for the above procedural matters which gave rise to unreasonable delay. IV. FEES SHOULD BE AWARDED FOR THE ENTIRE CASE, INCLUDING WORK IN THE CIRCUIT COURT AND THIS COURT Plaintiffs-appellants here properly pleaded their claim for attorney's fees in Count Seven of the Complaint (A. 28). See Shipley v. Belleair Group, Inc., 759 So. 2d 28, 29 (Fla. DCA 2000) claim for attorneys? fees must usually he pleaded to give the opponent notice of the claim?). After this Court ruled for them on the merits and remanded the case to the circuit court, plaintiff}: again'pleaded their claim by ?ling their motion for attorney?s fees. Fla. Stat. 57.1050) provides, inter alia, that ?the court shall award a reasonable attorney?s fee to be paid to the prevailing party . Plainti??s- Appellants were not prevailing parties until this Court rendered its decision on the merits, and thus properly ?led their motion to recover attomey?s fees for the entire 30 case in the circuit court. In the court below, the City argued that plaintiffs could not recover for fees for work in this Court because a fee motion had not been ?led in this Court. Florida Rule of Appellate Procedure Rule 9.400(b) provides: motion for attorneys fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought.? At the time that plainti?s-appellants were last in this Court, however, they were appealing the order to dismiss for lackof ripeness and denial of the motion for a temporary injunction. They were not yet prevailing parties when they served their reply brief and thus could not have allegedthat they were entitled to fees under Rule 9.400(b) applies to matters in the Court of Appeal for which fees are recoverable,? and does not purport to create a Catch-22 situation where a party has not yet prevailed and thus cannot make a timely ?ling. When this Court ruled for on the merits and remanded the case to the circuit court for further proceedings, they properly ?led their motion inthe circuit court pursuant to 57.1050) to recover fees for the entire case, in the '7 As held in United States Automobile Assn. v. Phillips, 775 So. 2d 921 (Fla. 2000), Rule 9.400(b) requires a party to cite the speci?c basis for a fee award: ?We interpret this language to require that a party seeking attomey?s fees in an appellate court must provide substance and specify the particular contractual, sta?artory, or other substantive basis for an award of fees on appeal. It is simply insuf?cient for parties to only refer to rule 9.400 or to rely on another court?s order in support of a motion for attorney?s fees for Services rendered in an appellate court.? 31 circuit court and in this Court. As this Court held inAllstarBur'lders Corp. v. Zimmerman, 706 So. 2d 92 (Fla- 3" DCA 1998): ?In an interlocutory appeal, the party prevailing on the interlocutory appeal must also be the ultimate prevailing party in the trial court to be entitled to a ?nal judgment of appellate fees ?rm the interlocutory appeal.? . . . The prevailing party for attorney?s fees purposes is the party prevailing on the signi?cant issues triedbefore the court. Id. (citation omitted). Because that court had a?irmed the dissolution of a prequ writ of replevin, the party who prevailed on that issue ?is not the ultimate prevailing party in the litigation and any award of fees is premature.? Id. at 93. If and when that party prevailed on the ultimate issue, ?a fee award at that time w0u1d be appropriate.? Id. The previous appeal in this case was in the nature of an interlocuwry appeal of the dismissal order based on ripeness and denial of the injunction motion. The fact that this Court ruled on the procedural issue and then on the merits was a testament to the lack of any basis for the City?s defense on the ultimate issue. Filing the motion for attorneys? fees in the circuit court a?er remand for work done in the circuit court and this Court was the proper procedure. Since it denied fees, the circuit court did not reach the above issue. The issue 32 is raised here with the expectation that the City will repeat its argument below and to give this Court an opportunity to provide its guidance on the subject CONCLUSION This Court should order that plaintiffs-appellants are entitled to an award of reasonable attorney?s fees for this entire case from the City of South Miami and its counsel, and remand this case to the circuit court for determination of a reasonable amount of fees. Respectfu?y submitted, MONTERO, FINIZIO, VELASQUEZ REYES 200 Southeast 9"1 Street Fort Lauderdale, Florida 33316 Telephone: (954) 767-6500 Fax: (954) 766-2690 Counsel for Appellants BY- Carlos A. Velasquez Florida Bar No. 755982 Emily De Santis Florida Bar No. 0146481 Stephen P. Halbrook 10560 Main Street, mite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Appellants Pro Hac Vice CERTIFICATE OF COMPLIANCE This is to certify that this brief is printed in Times New Roman 14-point font and thereby complies with the font requirements imposed by Rule Florida Rules of Appellate Procedure. Carlos A. Velasquez CERTIFICATE OF SERVICE I hereby certify that on this day of December, 2002, I mailed two copies of the foregoing via ?rst class, postage prepaid, to each-of the following: Elliot H. Scherker ,Greenberg Traurig, RA. 1221 Brickell Avenue Miami, Florida 33131 Earl G. Gallop Nagin Gallop .Figueredo, PA. 3225 Aviation Avenue, Suite 300 Miami, Florida 33133-4741 Michael J. Neimand Assistant Attorney General 110 SE. Street, 10m Floor Fort lauderdale, Florida 33301 Parker D. Thomson Special Assistant Attorney General One SE. Third Avenue, Suite 1700 Miami, Florida 33131 Carlos A. Velasquez From Sent: To: Sublect: Attachments: MPI-lammerlciaolxom Thursday, Januaty 27, 2011 6:23 AM Cunningham Katie MngeHemrtoAG McCollunp Pmplonvm FLORIDA HOUSE OF REPRESENTATIVES PAIGE V. KREEGEL Rmmrulvz, DISTRICT #72 4M Taylerw 4025?. Monm?. I30) 11:: CM Punk Corie, Florida 33950 Tm 32399-1309 941-575-5822 ?0488-? 7:117?: 838-544-0093 April 27, 2010 The Honorable Bill McCollum Florida Attorney General The Capitol Pbol Tallahassee, FL 32399 Dear General McCollum: The Lee County Commission has adopted ordinances rest-icting where lawful concealed weapons permit holders can carry in direct contradiction to the State?s ?rearms preemption laws. It has been reported' In the Naples Daily News (attached) that the County Attorney and Commissioners know that they are violating the law and simply choose not to obey it. This law was created to ensure uniformity throughout the State, and prevent a patchwork of local city and county ordinances that might ensnare otherwise low-abiding citizens who may be notion Thank you for your consideration and please feel the to contact me with any future questions on this issue. erely Paige reeael. M.D. State Representative District 72 lleallh a Family Services 11qu Count. licuthare Services Policy Committee (Chair). Criminal a Civil Justice Appropriations Coimriittee. Governmentei Affairs Policy Committee. Agriculture Nature] Emcee Policy Committee. Select Policy Council on Strategic Economic Fleming Burch. Zachary Fhmn: stnot Sent: Monday. Apdl 26, 2030 2:25 PM To: Kmogu.PaMe Cc: tnaeoak?9c0nuaan1wn annals: Richard A. Nascak 04/26/10 2:24 PM To the Honorable Paige Kreegel; Sir: Thank you for taking the time to read this message. I'm not terribly sure if your office is able to help in this situation, but I hope that you may provide sane guidance as to what night he a possible course of action.. I an a Florida concealed weapons/firearas license (CHFL) holder and reside in Lee County. I take the responsibility that cones with this license very seriously and have studied 5796 Florida statutes in great detail. Despite some aabiguities in the statute which I an sure will eventually be resolved in court, one particular section is clear. 5790.33 F5 is the section establishing the state_of florida's preeaption of firearms and ammunition regulation. It also declares null and void past, present, and future ordinances that may be passed by cities, counties, etc. The purpose of this legislation is as follows: 5 798.33 Field of regulation of firearls and ammunition preempted.-- (3) POLICY AND It is the intent of this section to provide uniform fireerws laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, aanunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms, aanunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws. Unfortunately, not all the local jurisdictions have gotten the idea. As a Lee County resident, I have occasion to visit parks in the area. I was-somewhat surprised to find a sign at the park entrance with a 'no firearas' icon on it. 5790.06 FS (12) specifcally lists those places where a concealed weapons/firearms license holder nay not carry a firearm. Parks are not on that list. Lee County Ordinance 06-26 specifically prohibits firearos in public parks without pernission of Director of Parks and Recreation. In fact, there are-several locations that are either owned or operated by Lee County, at which the county has illegally declared then as 'no firearms' areas. These include all Lee County parks, all East County Hater Control District parks, all Lee Memorial Health Systea buildings (at which the signs specifically prohibit legal carry by CHFL holders), the Lee Civic Center (which, ironically, is where the gun shows are heldl), and the Lee County Library System (in that their librarians are told to call deputies on even an accidental exposure of a weapon, regardless of 123mm. At first, I thought Lee County night just have overlooked the preemption law. I must now believe that Lee County?s actions are a deliberate attempt to avoid compliance. I found that the county has known about this conflict since at least August 28, 2089. An article was 1 published in the Naples Daily News about a local lawyer?s efforts to get a ?no firearms' sign removed in the city of Sanibel. The city of Sanibel did indeed find their sign was in conflict with state preemption and removed it. However, they consulted Lee County and there were some con-ents fron County Coulissioners and the Director of Parks and Recreation in the article which, in essence, said that they realized they here in conflict with state law, but will do nothing to resolve the situation until "they leave no stone unturned? in.their quest to circuevent the law. Six Ionths later, the ordinance and the signs remain. I began by contacting the individual offices. 1 spoke with the deputy director for parks and recreation. I spoke with the office eanager at East County Hater Control District. 1 spoke with the library director. Each one referred me to the county attorney's office. I contacted the county attorney via e-nail and sent all the research I had on the subject on February 1, 2010 and two days later I received a reply from Dawn E. Perry-Lehnert Assistant County Attorney, in which she said she uould contact me upon a decision as to the course the county would take. I have requested a follow?up from her on February 14th and April 6th and received no reply. So, I can only assuee that my county governent is obliging no to obey the law while they themselves knowingly ignore it. This is not what I expect from my governeent and 1 H111 be voicing that objection at the ballot box. But that doesn?t solve the in-ediate problem. Could you please take a eonent and suggest a possible course of action that does not involve having to pay for a lawsuit. Individual citizens should not have take local governeent to court in order to get them to obey state law. If they don't agree with the law, then they need to take action to change it. Until then, they must follow it. Thank you and I look forward to your reply. Richard A. Hascak Gunncd down: Lec attorney says anti??rearms signs at beaches must go Page 1 of 3 a need more It Gunned down: Lee attorney says anti?fireanns signs at beaches must 90 By CHARUE WHITEHEAD Friday. Minuet 20. zone Lee County is misrepresenting the law at its parks by posting signs ?rearms. an attomey says. Patrick Bucldey of Fort Myers Is also a National Ri?e Association ?rearms instructor who teaches concealed moors permit classes, tellng people all the time when! they can and cannot carry a ?rearm in Florida. One or the pieces they can to county parks. 'Tha statute is clear as Buckley said. Buckley cameacroes the hetookafanily weekend trip toenunty-a?ned Bowman's Beach on Sanlbel. 'No Open Flree. Alcoholic Beverages or Flrearme' said the slgnetthe petting lot Buckley said he knows better. and now so does the county. He wrote a letter to county of?cials the law and the oonilct. The state concealed weapons law epec'?celly supersedes any county or city cramenee. meaning the county doeen't have the boat authority to prohibit lawfully carried guns from its perks. ?That is correct." assistant county attorney Jed Schneck said. ?Certainty our ordinance is In con?ict with state iaw.? Parts director Barbara Mama said that she has that opinion from the-county attorney's of?ce. She was at an annual putt admiristratnrs meeting in Orlandowhere she said the Issue Is a hot topic. Numerous other Florida cities and counties prohibit ?rearms in their parks. ?We believe there are other stahrtee that may come hto effect.? she'said. ?l'm speaking to the and legislators for parks and rec. and they?re not There's a dl?erenec of opinion here.? Not to Buckley. Not to Collier County attorneys, who according to parks adrrinistrator 4127/2010 Gunnod down: Loo attomcy says anti-?reanns signs at beaches must go noplesnowacom Page 2 of 3 Camden Smith had the ordinance changed to remove the Mann: prohibition. ?We took it in the attorney and had it reviewed and they determined it couldn't be enfomod.? Smith said. Not to the handfui of other Florida jurisdictions Buckley's noti?ed - he says he's batting 1.000. And not to Interim Lee County Manager Karen Haweomhowrohe bookie Buckley agreeing with his "Leo Comiy perks and recreation is working on having the signs removed endlor the reference to ?rearms deiotod,? Home wrote. Mam said met ihe ?rearms prohibition is an Issue of safety at county parks. ?I'm not doing that until i leave no stone unturned.? one said. At least uncommiasionen mod. think we?re trying to ?nd a balance where people and we don?t hinder people's rights: Lee Commissioner Tommy Hoii said. 'We?re a tourist destination. and we want people to feel safe. We won't continue in con?ict win state law} ?It may be in con?ict with state law and unenforceable.? added Lee Commissioner Frank Mann said. 'It's s?li not a good idea to have guns in a county perk' Buckley agreed It?s a safety issue. but said he?s safer - as are those around him - when he has his gun. 'Why wouidwewmtto makea publiepark aviciim?zoiion zone?" he asked. 'it sign ijuotdon?tknow howyoutekethat book.? Hall and Mann both said park-goers world be safer if no guns were aiiomd. They disagreed their vohornenoo. "There are memos on both sides.? Hall said. ?(Hooir with) him." Mann responded. Manzo said she hopes to know more about howthe county might keep the signs and the prohibition next week. Buokioy said he'll be inbreeiod to hear what it in. 4/27/2010 Gunncd down: Loo attorncy says anti-?rearms signs at beaches must go Page 3 of 3 do have a problem with a governmental entity misreprceenfmg the state ofthe legal order.? he said. do have a prohiam?wnh the concept cfbelna asked to waive oone?tutional rights to gob a park. That bothers me enhe base almy spine}, Buckley cold he hadn't expected meidanoe given his pest success. 'If fordng myhand In 0mm protect the community I'd tryto eitwiththe That would amauntto a legal orderto change the clone ummly the county attorneys of?ce will win out on that one,? Hall cold. 'We'l have to have signs that are appropriate.? 020108a1we Mammal: ?-Onine 4/27/2010 From: Cunningham, Katie Sent: Thursday. February 03, 2011 1:52 PM To: 'MPHammer?lanlsom' Subject: HB 45 Draft amendments Attachments: 45-Gaetz-02docx; Marion - Attached are three draft amendments for HB 45. I've spoken with you about the ?rst one, and Connie said she?d spoken with yOu about the outers. 1. The ?rst one simply provides that ?rearm regulation ls preempted to the state except as expressly provided by the Florida and general law (the bill currently only speci?es general law. .2. The second one removes language specifying where the $5 million ?ne should be deposited. 3. The third amendment clari?es language relating to how interest accrues on sums awarded in any lawsuit ?led relating to a violation of the section. It alsociari?es language relating to the seizere of vehicles used by persons who violate the section. Let me know what you Karrie Cunningham, Policy Grief Of?ine! Justice Subcanmt'lue Phone: (850) 488-6333 Fax: (850) 413-0420 l4 Fl l4 r4 r! Ia 00401019005314 AMENDMENT 13111 No. HB 45 (2011) Amendment No. 1 COMMITTEE ACTION ADOPTED (YIN) ADOPTED as AMENDED (YIN) ADOPTED OBJECTION FAILED To ADOPT (YIN) WITHDRAWN (YIN) OTHER Council/Committee hearing bill: Criminal Justice Subcommittee Representative Gaetz offered the following: Amendment (with title amendment) Remove lines 39-61 and insert: (1) as expressly provided by the Florida Fonstitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storagez and transportation thereof, to the exclusion of all existing and future county, city, town. or municipal ordinances or regulations relating thereto. Any such existing ordinances or regulations are hereby declared null and void. .- Page 1 of 2 45-Gaetz-Ol AMENDMENT Bill No. HB 45 (2011) (2) following entities may not, when acting in their official capacity or otherwise under color of law, regulate or attempt to regulate firearms or ammunition in any manner, whether by the enactment or enforcement of any ordinance, regulation, measure. directive, rule. enactment, order, policy, or exercise of proprietary authority, or by-any other means, except as specifically authorized by this section, by general law, or by the Florida Constitution: I 8 3.x 8 8 NIT Remove line 9 and insert: by a. 790.33, F.S., by general law. or by the Florida Constitution; providing a penalty Page 2 of 2 es-Gaetz?Dl hi hi AMENDMENT Bill Nb. HB 45 (2b11) Amendment No. 2 ACTION ADOPTED (YIN) ADOPTED AS AMENDED (YIN) ADOPTED w/o OBJECTION EATLED TO ADOPT (YIN) WITHDRAWN (YIN) OTHER v? Council/Committee hearing bill: Criminal Justice Subdommittee Representative Gaetz offered the following: Amendment (with title amendment) Remove lines 163-167 and insert: should have known the act was a vidlation. I A Remove line 19 and insert: willfully violated; Page 1 of 1 45?Gaetz-O2 munm Bill No. HB 45 (2011) Amendment No. 3 ACTION ADOPTED (at/N) ADOPTED As AMENDED ADOPTED OBJECTION (YIN) TO ADOPT (YIN) WITHDRAWN (YIN) OTHER Council/Committee hearing bill: Criminal Justice Subcommittee Representative Gaetz offered the following: Amendment (with title amendment) Remove lines 197-201 and insert: accrue at 15 percent per annum from the date on which suit was filed. Where applicable, payment may be secured by seizure of any vehicles used or operated for the benefit of any elected officeholder or official if nOt paid within 72 hours after the order's filing. I A I Remove line 28 and insert: interest; providing for seizure of certain Page 1 of 1 45-Gaetz-03 From: Cunningham Katie Sent: . Tuesday, March 22. 2011 6:31 PM To: Subject: HB 517 Attachments: Handgun Amendmentdocx Marlon -Chalr Snyder wanted me to run the attached amendment to H3 517 by you. It would limit open any to handguns but'does NOT Include any sort of holster requirements. Let me Katie Mink? Policy Chief Ginu'ual Justice Subcommittu' Phone: (850) 488-6333 Fax: (850) 413-0420 -Committee/Subcommittee hearing bill: Judiciary Committee AMENDMENT Bill Nb. 517 (2011) Amendment No. 1 ACTION ADOPTED CNN) ADOPTED AS AMENDED ADOPTED w/O OBJECTION (YIN) FAILED TO ADOPT (YIN) WITHDRAWN OTHER Representative(s) offered the fOllowing: Amendment (with title amendment) Remove lines 40-41 and insert: notwithstanding the?previe?ees?e? s. 790.01 or may openly carry a handgun, as defined in s. 790.0655, notwithstanding s. 790.053. The licensee must carry the license, I A.M Remove line 4 and insert: concealed carry license may carry a handgun Openly notwithstanding Page 1 of 1 Handgun Amendment From: Sent: To: Subject: MPHammerlGaolsom Saturday, January 29, 2011 9:38 AM CELLONLONNIE: Cunningham Katie letter to Governor on DOR viglation of ?rearms preemption law JEFF- KOTTKAMP LIEUTENANT GOVERNOR June 24. 2010 The Homeble Cherlle Grist Govemor. State of Florlde The Ceprtel FL 32399 Deer Govenw Grist. I unveiling to urgeyou to teeue an Eltewllve Order heltm the oolleetlon of eelee term on Gun cube until the uglelature takes sullen on thie leeue. It were brought to rm attentlen that the of Revenue ls targeting gun clubs private drooling range: torthe wWofeelestex. mnepemmntotnevenue private rer'rgeeie an which Is taxable edrnteelon to a reuee?onel ?ley have Inmeed thle texwihoulany legislative do so. L?i . maul. Themtbn ofsun dub sheaths mess mantle to the regulation of whloh appears to violate state law. Mnemopento Some In eddllon to Ignoring the sole authority ofthe Legleleture to regulate fireenne the actions ofthe Department of Revenue may verywell vlolete the 2nd warrant. They are imposing Merton the use 0mm It can certalnly be argued thatlhle violates the rightto beerannepruteeted by ourConelltullon. shooting rangeewunoteumo?zedbymeLeghlem endsueh etex mey bee vlolellon elbothlhe Unhetl Commonendthe ConetltutbnotFlorlde. I urge you toluene an Executive Order requiring the Departmental Revenue to discontinue the collection ofseleetexonfrom gun chbeMlhehoo?ng rennee Shoerely. .le? me TIE CAPITOL Tum W399 - {850] 488-4711 1850) 921-6l?l4 From: MPHammerl?aoLcom Su?: Thursday. January 27, 2011 12:48 PM To: Cunningham, Katie Liab?ity A?achments: COMMENTARY Physicians, Firearm Counseling, and Legal Liability roman A PAULA. MD. JD. Tempe. n- ABSWTOWIM potential mmWy?meder?nWHepmmnIWofem In there have appeared in the medical literature a number of calls for physician in violerne.? The American Medical Association has recently published a Plantain Firearm Saw Gmdem ms: in this endeavor." Medical literature addressing the subject of gun violence. however; noticeably dialogue on the question of whether physicians are poop- tlonto ofthel clanlmolve- mentln mhasoccuned. hlsaxticleisan done of physicians' counseling their patients Iw?loon- slderthefo narrowqueatlom apetlent rape. robbery. aggravated remit. or homicide. ?Isllallmunethat From the Division of Medical Ethic: and Humanities. . of Medicine. Tampa. Re ofSou?I Flu College at Modules. Division cf-Medlul this and Humanities, 011nm?! Modldne. MDC Box 19. 12901 Bruce 3. am. Templ. mama-4199. mummies?AN OVERVIEW A patient who brings a negllgel?ce action a elements to prevail. lrst. she must establish that the standard ofmre esmbliahedbylawforthepro- tendon of Emmi: against an memorable risk of harm. econd. atiem must establish that the physician that omer worm that the physiclen's conduct fell below ?iedandardofcare. Third. that the ddiendam plwsictan's breach was both the actual came and the legal or"prm:hname" establish thatshewashfaothjuredASalmady mmrormepmmad?mMWm' the occurrence of an injury. Duly not require one person to actaf?rom?velyto assist another. Once a person acts. Mover, he kunder alegal dent manner. 'l?hus. even though physicians have no legal to counsel their patlents about guns. the who undemkes to "semis- - Breach ofDutyand dze?andardofCam . Median} Custom. that a physician advises his patients on safety. what should he tell those patients? tated otherwise, what II MEDICAL JOURNAL 0 ?1.04. No. 3 would ?'ieatandard ofcare be asitpertainsto advising patients about ?rearms? Generally. 'the physician under an oblig- tion to exudate the same degree of knowledge, potent practitioner would exercise under the same or similar circumstances.?This circular de?nition means that. as a rule. the medial profession itself sets the standard of care in metthestandard ofcare. the dd?endant physi- cian argues not that hB treatment or recom- rrmdaiion is e??octiw in the patient?s condition; rather. customary. In fact. the de?endant physician need not even show that he did what most physicians would have done under the In bie minority? of physiclam would have done what he did."I Under this doctonfriendly standard. physi- cians or surgeons wishing to counsel patients to pmbablydoao In relativesafety. I qualify this assertion because while Camel et al' have reported that 19.7% (arguably a "respectable mino?ty') of respond- ing internists and surgeons claim to 'talk to them." the content of those conversations was not re- ported. Whether a physician who has told his patient ?as concern: us, the risk ofhannau- weighs the bene?ts arded by self-protection" hasmetd'iestandardoi'mmwouldbc a quee mony of dueling expert witnenea. 77m ?Lay Standard." Since physicians wam? ing their patients about guns are imparting in- formation that is arguably nonmedicai, court: might re?ne to accord the medical profession the sunny deference that they normally do. conformance to customary practice might not be given conclusive weight. Insuoh awe.thecouttmightallowthe_1my to weigh without expert testimony the reason- dent. Onem ot'dohgti'rlawouldbe toempioy the 'laystan 'manystatesmein?informed consent? oases. Under this Kendal-d. physician: must provide their patients with that inform don which the ordinary. reasonable patient wouldwant to loam? Under this more patient-friendly but less doctonfrlendly standard. the legal risk to our defendant physician wouid probably be greater. Although a discussion of the and waakmaaea ofeachaldeofthegunconu'olde- lowing wardigmeion will help clarity the risk It has been mggested that. as concerns ?re- arms, the prevailing View being promulgated In medical and public health litamtm'e di?'era ab- standally?-om thenew fromcrimlrn logic literature." Kellermann et al"" have argued that the ?lmiiy gun is more likelyto kill yduorsomeoneyoulmow thantobeuaedin self-deform However. criminologist: Kleek" has defermegtmuseper inthe United States the 19 901993. ofwhich about 400.0 ?were claimed by the [defensive gun mars] what'eoatainiyorahnost saved a life.? ,This ?gure dwarfs the 35.95 total ?As of 1995, at least ?fteen surveys i dicated 700,000 or more annual [defensive gun uses] (which would equal or exceed the number of criminal misuse: of whilejust one'indi? cubed fewer than 1 For our pin-poses, dent being advbed about gun ownership would 3? and physicians? believe that it is correct. Certainly. the argument that a patient would rlaiuandban?tx ofgtmovmelal'?p?arxicome quently that the counseling plusidan omitting such lnfonnatim had not met the scar'ldard of Jut?cbIRbt-Bma?i . Ramiy. courts may come in Judicial risk-bene?t Mandi-Eh: dictate the standard of care thetmelves.? bestimown example ofthis in amedicaicon? diatoase, the defendant ophthalmologists proved that it was not tote?: un? der the age of for glaucoma. everiheleaa. thbaimplemannhaspressmetastuu? Underd?slattm?fonnulation ?babiybecompambleto his risk memedsk-bene?t balancingused bypatientx side of thegunconu'ol debate Paola 0 HREAMOOUNSEJNGANDLEGALLMBIUTY a Camden Adm] Carnation As noted. in order for the clan. she must prevail on all four elements. Let assume. therefore. that the physician?s advice is determined to have taller: below the slanchr'd ofcare. The to prove that the negligence ofthe physician was both the actual cause and the proximate (or legal) cause of her injury. thetestfor actualcau? satlon is the 'but for" test?the defendant's act is the actual cause of the plaind?'s injury iflt can be said that the injury would not have occurred but for the defendant's act. Thus. in our ?rearm scenario. the piain??' would need no establish that but for the physician's advice. shewould nothave been mjmed.Thistraum- part argument but for the physichn?s advice. attack. and her being armed would have pre- vented the injury. Establishing the ?rst part would necessitate the jury that the patient would not have been without her firearm but for the adviceofherp .ThernalorityofAmed- can jurisdictions would employ an objectiVe 'reasonable patient? tat, which asks what the reasonable patient would have done had the physician's advice met the standard Several arguments could then be made as tending to Show actual causation in case. Emmourh omeucalcase.umuagmo$br arggests a causation: the patient own a gunanddis ofita??erherviaitm?redoo tor-'3 of?ce. nd.mepadentcouldarguethat as a reasonable patient, she heeded the ad- vice?couched as medical advice?of her doc non?lndeed. memerefact?wtme physician an- grged in such comduwes an implicit mar-lion on hh that he had the power to in?uence pa?entbehavior in this regard. - Establishing the second part would involve convincing thejury that being unarmed resulted in the plaintiff?s being assaulted or raped or murdered. Ofwwsetheraisnomyuo prove with metaphysicalcermintyd'ratthe avaihbllityof a ?rearm would have mind the injury; how- ever. the law does not require such certainty. Under the ?losers chance' "ifthere ofsm?vivalandthe defendanthas it. heisanswerable'? Mutable-Ice tbeo??eredthat?rearmed preterm rave had asubstantial possibility geu?tatsuch ovidememighthe fomdinthe a recbtwith arms of all types (knives, guns, or odaerweapom)areiess tohavetherape cyan-rt then?: completed.? ikewise; ?gun poa- newbie in ihtal attacks except by mm Amtrak Cam Proximate carnation it a legal issue decided by the judge! The general ofthe reasonably foreseeable harmful results of hbacta. Sped?cally. whereadefendart'snegli- w?lbetheviaimotaa?ime. notbebrokeniuthe criminalact.? that ph?lclan's negligent are defendhenlelf. calculate" I have tried to show the potential legal risk .to physicians who engage in ?rearm safety counseling. I do not mean to assert that fear of legal liability should prevent physicians ?'om counseling their padmts guns violence. 0n the other hand, I would so thatathoughtful diacmnon on the lame ofwhedter should counsel their patients about guns and gun violence should be informed by artful contemplation of the relevant contextual considerations. tn- cluding the potential legal consequences of such involvement. One might argue that physicians who do not engage their patient: in dhcusions of gun safety also ihce potential liability; however, I believe their liability risks are substantially lower for a number of reasons; First and most importantly, the pa- dent would have to establish that the defendant Ich an American courtheld thatsucha dutyexhts. Norwouldti'recmeforestablishmg archer-ewdutybean it has been suggested by proponents or the medicallzation of ?rearm ury reventlon that this process be analogize 00 medical- an M2001 - mmomu?aum - moan? lzation ofmouor vehicle [tutu-y promotion; how- ever. I have likewise been unable to ?nd any physicianowedhis tientalegaldutytodis- cusseatbeltuse moldmenonmedicel natweoftheinfomm?on involvedin ihe?ne? moonmxt.1belleve court: wouldbemluctant Second. the literamresuggecmthatind?sm uation plaintiff patients would have a dif?cult discuwion ofgun safety) ind fallen below the mardof?care. never" ialktopatienisaboutgmn. Asdiacumdeerlier. although what is medically customs is not alwaysdebemuna?ve of thestandard 0 care. it umlly's. . Finally, the plalnd?? patient would have grove rovethat she would have diverted herself of er gun if the defendant physician had Only warned her of its dangers-Limit is that the physidan'sfa?memmwasdtemoidle wenta'ihismena, ldeoi?orwee noristheremyrwonlnhind- thatsucha wouldheve convincedthepa?entm?dheme oithegun. since-he (the physician) hasnospecialexpw memtliearea. No doubt. this is. an area where reasbnable physicians will disagree. and some may feel situation of those who feelimch cowmling is where ocurts confuse the concepts of a'du and Hstandardofcane. standard ofcareln a caseisaquee denotiactmoatofhenset?edby?iem the shouldhe Howevcmhere in Pate Radial,? the issue before the Florida dutytothechildren ofapaticuitowam that patientof the neiicdly nature of thecondliim rwhich the wheat- warningbeglven?ln affect merging duiyand sinndan?i ofcourts promhoeuch delemtion. me mu?tbe concerned that the voluntary undertaldn?rby some phylum to advise patients about part of the entire profession to do so. Nor are concerns limited to Individ? ual organim?om promul- gating guidelines, parameters. or protocols may even expose themelvu to liability if 'poorly u'a?ed guidelines lead to 1 my. or if may fall to the guidelixns in as the medical knowledge advances.? This 1113th implica?om for medical organizations promul- gating guidelines on the subject of ?rearm safety. In the end. about potential legal lia- bilityisuse?xlifitfomesm meri?callycomider the questions that ultimately matter most- whether convincing patients not to own guns saveslives, and surgeons are especiallyq uall?ed to help pa- tients make informed dechiomabout gun own- ?shin- Hm c? mm ?3&qu i :11: bur: m1m12?m Davldoffi?. violence Ann Idem lumen m. m? mums-rm ?Iii-'7 and 993; ?gram: pm 0? Ana-nun Annb?nud WEI-HI Cha?nhlnenmw Annotation. 1998 PatiermPJ.Smid1 are; A-JDJ: 141221-223 0 row we ?pg! mvapodie pom-Med maggot B. Gumvioleneam?ou?lmd (heredhtrichn's role in mar) prevention. Podium: MIT-622 10. 280.- 11. maul-ham of: miioml ?can" of an A18 26750333031 m? MM 12. (1698) 13. FmBR.Gruney1LJoh-1m8l-l p383_ 14. 15. JK: Gun: and public $99.55*? 99 health: epidemicofvioimce. pandemic 62mm? of mil-Mao! hum-minted death: inthehane. WJMJIW: 31435574580 Pm FIREARM OOUMUM AND LEGAL MUN 31 1.. 18. 31. '23. .Kdmm?mm?p. SomuG, atalzhiddainltu Md! as: dwarferhmiddehdnham??u?w 15:3 32930844091 Klod? 6.0152211: Armed con?ne: the pram- loncoand mmnoful?dormum-gunJG-hm Wl?s; 36:150-187 ?maul: Mud MWN npola-Ionu hwli?l: 181l13 . ??uggm Gun Unibd Shh. 6}]er TbchI-l. lmmAhRu-Amhmd Buchanan-?0! (ads). - Willi!? I ?In take am am: guns. New York The: Mm 1:944:20 . Sum" EA: Guns lathe fullure ofpeer undid Mun. name. 1&4; 83333-143 . PmIMkOntheJnumal'I Minot to at protection [Exam-i1). Imma. 1994: 18:1 131 .hlulalym 0 Vol.94, No.1 . . Myra-v ?WuthS?ll. (1974) . Puma-BEGruMy'lL. eta] Sakai? Ln: ELM 19 364.133 00, . MVWM 888F2d62li (4mm 1m) . Kleck G. Belan?cM: Victim mum-Ice ando?andar Warm WW IWIWW W. .Burm human-lulu. 19370 . 158015?: with guns: the comoquoncu. ?autism Ravi-ad union otpapu- Slan 1885 . 373149-162 Mantras and magic. I wad-ulmmzu rave . (Dcousm) W113. Worunnmm. ?a Qp??on gunsafety l1"! nan: WITH 308' m- iah? ail?m lupmi ?In mama?Wand mummu'm well my mt 11mm to. 1mm Danni's; 3. i? From: Sent Thursday, July 07. 2011 9:07 AM To: Cunningham, Katie Subject: NRA AMCUS Motion Attachments: 50?NRAamiqsmo?on.pdf Case Document 50 Entered on FLSD Docket 0710512011 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. ll-22026vCiv-Cdokcfi?uno? DR. 6t .11., Plaintiffs, V. RICK in his ot?cial capacity as Governo: of the State of Flon'da, et al., Defendants, and NATIONAL RIFLE ASSOCIATION. Proposed Intervcnor. PROPOSED NATIONAL RIFLE ASSOCIATIONS MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE WW Case Document 50 Entered on FLSD Docket 0710512011 Page 2 of 7 For the reasons explained below, Proposed lntervenor National Ri?e (NRA) respectfully requests leave to file an amicus brief opposing plainti motion for a preliminary injunction and to participate in the hearing addressing painting" motion set for July 13, 201 l. A copy of brief is attached as Exhibit A, and a proposed order is attached as Exhibit B. BACKGROUND Plaintif?r seek a preliminary injunction prohibiting Florida of?cials hum enforcing a Florida law entitled ?An act relating to the privacy of ?rearm owners? (Firearms Privacy Act or the Act), which the Governor signed into law on June 2. (A copy 20- 1.) The Act protects the interests of ?rearms owners by, among other things, stating that doctors should refrain ??orn asking irrelevant questions shoot ?rearms, providing that patients may decline to answer such questions, and prohibiting doctors from discriminating against patients solely on accoum of ?rearms ownership. mm is the Nation?s foremost and oldest defender of Second Amendment rights. The NRA was also a foremost supporter of the Firearms Privacy Act The NRA supported the Act in response to its Florida members' experiences of being asked intrusive questions about gun ownership during visits to the doctor?s o?ice. See Declaration of Marion P. Hammer (Hammer Decl.), DE 36-2 11 5-6. On June 27, 2011, the NRA moved to intervene in this matter to defend its members' substantial interests in the validity of the Act. The Court set an expedited schedule for brie?ng the NRA's motion, and brie?ng will be complete when the NRA ?les its reply later today. The Court has also set today as the deadline for briefs in opposition to plaintiffs? preliminary injunction monon. Although the Court has yet to rule on the motion to intervene, the NRA is prepared to meet this deadline. The NRA also wishes to ensure that the Case Document 50 Entered on FLSD Docket 07/05/2011 Page 3 of 7 Court has the opportunity to consider the NRA's views on this matter regardless of the Court's ruling on intervention. The NRA thus respect?rlly asks the Court?s leave to file an amicus curiae brief Opposing plaintiffs? preliminary injunction motion. if the Court grants the pending motion to intervene, the NRA requests that its amicus brief be deemed its memorandum of law opposing plaintiffs? motion? for preliminary injunction. And in all events, the NRA requests permission to participate in the hearing addressing plaintiffs? motion set for July 3, 2011. ARGUMENT The NRA mhmits that it should be granted intervenor status in this litigation. But ifthe Court denies out motion to intervene, the NRA'should be permitted to pottioipote as an amicus curiae. Whether and to what extent to permit participation by an amicus curiae ?is solely within the discretion of the court." News Sun-Sentinel v. Cox, 700 F. Supp. 30, 31 (8.1). Fla. 1988); otto City ofMarietla v. 1mm, Inc, 196 F.3d 1300, 1304 (11th Cir. I999). We respectfully submit that the participation in brie?ng and oral argument win assist the Court in deciding the im presented by this one. The NRA has frequently participated as an amicus curiae at all levels of the federal judicial system in cases touching on its members' interests, including in cases presenting First Amendment issues See. eg. United State: v. Stevens, 130 S. Ct. 1577. 1589 (2010); Citizen: United v. Federal Election Comm 130 s. Ct. 876, 937 n.15 (2010) (Stevens, 1., concurring in part and dissenting in part); Federal Election Comm ?rr v. Massachusetts Citizens for Inn. 479 US. 238, 2.4.0 (1986); City of Chicago v. 0.5. Dept. of Treasury, 423 F.3d 777, 778 (7th Cir. 2005); Edward: v. City of Goldsboro, 178 F.3d 231. 237 (4th Cir. 1999); United States v. Salomone, 800 F.2d 1216, 1224 n.10 (3d Cir. 1986); Eze? v. City 2010 WL 3998104, at ?2 (ND. Oct. 12, 2010). And the NRA has a distinct perspective and knowledge of the subject matter of this litigation: it Case Document 50 Entered on FLSD Docket 0710512011 Page 4 of 7 was an active supporter of the Firearms Privacy Act and a participant in the legislative process leading to its and its members, whose eatpe?mees spurred the NRA's support for the legislation, are the Act's direct bene?ciaries, see Hammer Dec]. 1 6; NRA Motion to Intervene 4- 6 (DE 36). Indeed, as we explain in our motion to intervene, plainti?'s? suit threatens to eliminate the protection the Act, provides to NRA members, and none of the existing parties to this litigation are charged solely with protecting those members? interests. See NRA Motion to InterVene 6-10. CONCLUSION For these reasons, the Court should motion to ?le an amicus brief and to participate in the July 13. 20]] hearing addressing pleintiffs? motion for a preliminary injunction. CERTIFICATE OF GOOD FAITH CONFERRED BUT UNABLE TO RESOLVE ISSUES PRESENTED MOTION Form to Local Rule I hereby certify that counsel for the movant has conferred with all parties or non-parties who may be a??ected by the relief sought in this motion in a good faith effort to resolve the issues but has been unable to resolve the issues completely. In particular, counsel for defendants stated that defendants will not oppose this motion. Counsel for plaintiff: stated. that plaintiffs would consent only lt?the NRA withdraws it motion to intervene in the case and does not seek oral argument time at the preliminary injumtion hearing .S'ee Hammer Dec]. 1 5; Committee Hearing on SE 432, held by the Committee on Criminal Justice at 1.:27 30 (Feb 22 2011) (available a! (testimony of Marion Hammer); Committee Hearing on H3155, held by the Criminal Justice Subcommittee at 1::23 30 (Mar. 8, 2011) (available at . gum Hm: 1.. (some); Committee Hearing on 88 432, held by the Committee on Budget at 4:00:09 (Apr 14 2011) (available at (me) 3 Case Document 50 Entered on FLSD Docket 07/05/2011 Page 5 of 7 set by the Court.2 Because the NRA do? not agree to either of these conditions, plaintiff; will oppose this motion. Dated: July 5, 2011 Respectfully submitted. 3/ Gregory M. Cesarmo (Fla. Bar No. 217761) 1 n?e s. CARLTON FIELDS . 100 SE. Second Street, Suite 4200 Miami, FL 33131 Tel: (305) 539?7417 Fax: (305) 530-0055 Charles J. Cooper" it David H. Thompson' com Pete! A. Patterson? . COOPER KIRK 1523 New Hampshire Ave. NW Washington. DC. 20036 Tel: (202) 220-9600 Fax: (202)220-9601 Brian S. Koukoutehos? 28 Eagle Trace Mandevi lle, LA 70471 Tel: (985) 626-5052 l'Pro hac vice application pending Counsel for National Ri?e Association 2 Plaintiff! consent is also contingent upon the NRA not Opposing plaintiffs? request for an additional ?ve pages for their reply to respond to the arguments. The NRA does not oppose that request. Case Document 50 Entered on FLSD Docket 07/05/2011 Page HEREBY CERTIFY that on July 5, 201 1, I electronically ?led the foregoing document with the Cleric of the Court using I also certify the foregoing document is being served this day on all counsel of record identi?ed on the attached Service List in the manner speci?ed. either via transmission of Notice ofBlectionic ?ling genueted by or in some other authorind manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. Gregory M. Cesar-mo Case Document 50 Entered on FLSD Donket 07/05/2011 Page 7 of 7 SERVICE LIST Jason Vail Edward M. Mullins Assistant Attorney General. Hal M. Lucas OFFICE OF THE ATTORNEY GENERAL Suite PL 01 The Capitol Tallahassee, FL 32399 Tel: (850) 414-3300 Coumeljbr Defendants via Malice of EIechmic Filing generated by ASTIGARRAGA DAVIS MULLINS 85 GROSSMAN. PA. 701 Brickell Avenue, 1601 Floor Miami, FL 33131 Tel: (305) 372-8282 Fax: (305) 372-8202 mullin?as_t1_da' vis.com Bulge S. Manheim, Jr. . Douglas H. Hallward-Driemeier Augustine M. Ripa Julie M. Lewis ROPES 8: GRAY LLP 700 12th Street NW, Suite 900 Washington, D.C. 20005 Tel; (202) 508-4600 Fax: (202) 383-8332 - Jonathan E. Lowy Daniel R. Vice BRADY CENTER TO PREVENT GUN VIOLENCE Legal Action Project 1225 Street NW, Suite 1 100 Washington. D.C. 20005 Tel: (202) 289-7319 Fax: {202) 898-0059 ?10 i Coumel?r via Nogice of Elecrrmic Filing generated by CWECF From: MPHammerlanlx?om Sent: Tuesday, October 30, 2012 9:56 AM To: Cunningham Katie Subject: NRA Amlcus Attadwnonts: No. 12-14009 Uumm Sums COURT Arm FOR Tm: ELEVENTH CIRCUIT DR BERND WOILSCHIAEGER, e: at. v. STATE OF FLORIDA, et a1, Mmdants?Appellan?. - Appeal ?'om the United States District Court for the Southern District of Florida Case No. (?ammable Marcia G. Cooke) BRIEF OF AMICUS CU RIAE NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. SUPPORTING APPELLANTS AND REVERSAL Charles 1. Cooper David H. Thompson Peter A. Patterson COOPER AND KIRK. PLLC 1523 New Hampshire Avmmc, NW. Washington, DC. 20036 (202) 220-9600 Counsel ?ar Amicus Curiae WW, at at v. Governor of Horida, ?at. Case No. 12-14909 Wm WM AmicusCu?acNa?onal Ri?e Association ofAma'ica, Inc. hasnoparent corporations. [thus no stock, and no publicly held company owns 10% or more of its stock. Pursuant to 11th Cir. R. 26.1-1, memdersignedcounsel eer??estlm, in addition to the persons and entities identi?ed inAppellams' opening brief, the. following persons may have an interest in the outcome of this case. Counsel for Curiae National Ri?e Association of America, Inc. Cooper, Charles]. Patterson. PemrA. Sepmber24, 2012 Charles]. Cbunselfor Amicus Curiae C-1 of 1 FCON 22:: TABLE OF AUTHORITIES .. - ii STATEMENT OF THE ISSUES INTEREST OF AMICU 1 INTRODUCTION . . ..2 SUMMARY OF ARGUMENT . 4 ARGUMENT 5 I. The Act Does Not Interfere With Doctor-Patient Communications Regarding Firearms Safety. . II. Plainti??s Lack Standing to Challenge the Act II The Act Does Not Violate the First Amendment 13 IV. The Act Is Not Unconstitutionally Vague 27 CONCLUSION .. 30 TABLE OF AUTHOBLTIES 935??. has Accounm?s Soc ?y of Va. v. Bowman, 860 F.2d 602 (4th Cir. 1988) 18, 19 *Ame?can Booksellers v. Webb, 919 F.2d 1493 (11111 Cir. 1990) 8 American Library .435 'n v. Barr, 956 F.2d 1178 (DC. Cir. 1992) 12 Butler v. Hamburgh, 900 F.2d 871 (5th Cir. '1 990). 7 - C. G. Willis, Inc:- v. Director, We of Workm? Comp. ng'ams, 28 Carey v. Wolnitzek. 614 F.3d [89 (61h Cir. '2010) 6 Clark v. Martinez, 543 US. 371, 125 s. Ct. 716 (2005) 8 Coleman v. DeWitt, 282 F.3d 908 (6th Cir. 2002) 23 Conantv. 17111193309 F.3d 629 (2002) 22 FIoridaBarv. WentForIt, Inc..515 us. 618, 115 (1995) 19,26 Gentile v. State Bar ofNev., 501 vs. 1030, 111 s. Ct. 2720 (1991) 20 Gonzole: v. Carhart, 550 vs. 124, 127 8. Ct. 1610 (2007) Huhon v. King Spalding, 467 US. 69, 104 s. Ct. 2229 (1984) 12 Holder v. HmnanitarianLameject, 130 3.01. 2705 (2010) 28 Horton v. City qut. Augustine, 272 F.3d 1318 (llth Cir. 2001) 27 HurIey v. Irish-American Gay, Lesbian Bisexual Grp. of 808., 515 11.8. 557, 115 s. Ct. 2338 (1995) 13 [Carlin v. Faust, 188 1330 44.6 (7111 Cir, 1999) - ..28 Laird. v. Tatum. 408 ms. 1, 93 s. 2318 (1972) 12 Legal Sens. Corp. v. Velasquez, 531 US. 533, 121 s. Ct. 1043 19, 20 Lopez v. Ceodoele, 630 F.3d 775 (9th Cir. 2010) 12 *Lowe v. SEC, 472 as. 181, 105 s. Ct. 2557 (1985) 18 Mather: v. Women ?s Health Ctr.. 1110., 512U.s.753, 114 s. 24, 25 Marks v. United States, 430 us. 188, 193, 97 s. Ct. 990 (1977) 17 Mohamed v. Palestinian Auth, 132 s. Ct. 1702 25 ii Mullim' Coal Co. v. Director, O?ice ofWorkefs Comp. Programs, 484 U.S. 135. 108 S. Ct. 427 (.1987) 28 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992) 17,18 Qwest Com. 258 F.3d 1191 (10th Cir. 2001) 6 Regionalm, Inc. v. Canallns. 639 F.3d 1229 (10th Cir. 201 7 Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244 (1984) 24 Rumfeld v. Forum for Academic mammal Rights. Inc, 547 U.S.-47, 126 S. Ct. 1297 (2006) 13 State v. 1710mm, 528 80.21:! 1274, 1275 (Fla. Dist. Ct. App. 1988) 7 Momma? v. Wesm States Med. Ctr., 535 U.S. 357, 122 S. Ct. 1497 (2002) 19 Union El?c. Co. v. Consolidation Coal, Ca., 188 F.3d 998 (8th Cir. 1999) 7 United-States v. Eckhardt, 466 F.3d 938 (11th Cir. 2006) 13, 30 United 53am v. Langley. 573 F.2d 783 (3d Cir. 1978) 13 United States v. Maria, 186 F.3d 65 (2d Cir. 1999) 6 United States v. Robinson, 922 F.2d 1531 (11th Cir. 1991) 6 United States v. Rogers, 14 F. App?x 303 (6th Cir. 2001) 7 University of S. la. v. new, 374 So. 2d 16 (Ha. Dist. Ct. App. 1979) 6, 7 Wrginia v. American Booksellers Ass '11, 484 U.S. 393, 108 S. Ct. 636 9 Williams v. Taylor, 529 U.S. 420 6 Wilson v. Sta?teBar ofGa, 132 F.3d 1422 (1 11h Cir. 1998) 12 onal ?v 42 U.S.C. 5 12112(d)(2)(A) 16 42 U.S.C. 1320:! 11 42 U.S.C. 30083-11 . 2 8, 29 46 U.S.C. 3507 29 38 CPR. 21.284 28 FLA. STAT. 381 .026(4)(456.0575 26 2 45607301) - 2 458. 305(3) 26 26 ?790.338 790.381 .026(4)(b)(8Hl l) 2 AAP, Committee on Injury and Poison Pmention, Firearm-Related Injuries A?'ecting the Pediatric Population, 105 PEDIATRICS 888 (2000) 14,15 ACP, Firearm Position Summary, at 8 LAW DICTIONARY 784 (9th ed. 2009) 30 Brief for Organizations Committed to Protecting the Public?s Health as Amici Curiae in Support of Respondents at 1, McDonald v. City of Chicago, 130 Ct 3020 (2010) (No. 08-1521), 2010 WL 59033 15, 1? Brief for Petitioners and Cross-Respondents, Casey, 505 U. S. 833, 112 S. Ct. 2791 (1992) (No. 91-744), I992 WL 551419 l7 Briefofthe AAP et a1. as Amici Curiae in Support ofPetitioners at], District of Cqumbia v. Heller, 554 ..S 570,128 S. Ct. 2783 (2008) (No. 07-290), 2008 WL l57189 15 House Comm. Hearing at 42: 35 (April 5, 2011) (Dr. JeffScott, Florida Medical Ass' available at . -- .J. him 2 House Comm. Hearing at 43: 00 (Marion Hammet, NRA), available a: 2. . 9 JudiciaryComm. :35 (Apr. 12, 2010(ch Brodwr),available trig. ouse.: I [Sv'w H. at 4:1. 9 Sarah Clune, Report: Push ?Jr Electronic Medical Records Ovaloolm Security Gm; May 17,2011, at STATEMENT OF THE ISSUES 1. Whether Plaintiffs have standing to maintain this action. 2. Whether provisions of Florida?s Firearm Owners? Privacy Act Violate the First Amendment. 3. Whether provisions of the Firearm Owners? Privacy Act are void for vagueness. INTEREST OF AMICUS The National Ri?e Association of America, Inc. is the Nation?s foremost and oldest defender of Second Amendment rights. The NRA is also a strong supporter of First Amendinent rights, as demonstrated by its participation in cases such asMcConneIl v. FEC, 540 US. 93, 124 S. Ct. 619 (2003). The NRA championed the Firearm Owners' Privacy Act in response to its Florida members? experiences of being asked intrusive questions about gun ownership during visits tothedoctor?sof?ee. Act?s validity. The parties have consented to the ?ling of this brief.? No party?s counsel authored thisbriefinwhole or inpart, noparty or party?s counsel contributed money that was intended to fund preparing or submitting this brief, and no person - other than the NRA, its members, or its counsel contributed money that was intended to fund preparing or submitting this brief. INTRODUCTION Befom the Court is the district court?s decision striking down several provisions of Florida?s ?Act Relating to the Privacy of Firearms Owners,? 155, codi?ed at m.?stm. 790.338, ("Firearm OWners? Privacy Act? or ?the Act?). which regulates the practice of medicine in Florida by providing for ?[m]edical privacy concerning ?rearms? and by addressing Won against, and harassment of, those individuals who choose to exercise their. fundamental constitutional right to keep and bear arms, runs at 2. The Act was endorsed by both the NRAand the Florida Medical Association} and it was enacted following a number of incidents (identi?ed in the legislative history) between doctors and patients concerning Second Amendment rights. For example, on one occasion, ?a pediatrician asked a patient?s mother" during ?a routine doctor?s visit? if ?there were ?rearms in the home." Id. at 3. When the mother ?refused to answer, the doctor? told the mother ?thatshehad30 Id. There are several provisions of the Act at issue here: Section 790.338(1) barn licensed health care practitioners and health care facilities from ?intentionally enter?ng] any disclosed information concerning ?rearm ownerahip into the 1 See House Comm. Hr?g at42235 (Apr. 5,2011) (Dr.Je??Scott. Florida Medical Ass id. at 43. 00 .(Marion Hammer, NRA) available at patient?s medical record if the practitioner knows that such bgformatr'on is not relevant to the patient medical care or sa?aty, or the safety of others.? Section 790.338(2) provides that proo??oncrs ?shall respect a patient?s right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a ?reem or ammunition by the patient or by a family member ofthc patient. or the presence ofa ?rearms in a private home or other this provision, a health 'care practitioner or health care facility that in goodfatth believes that this Information is relevant to the patimt?s medical care or safety, or the sqfegt of others, may make such a verbal or mitten inquiry.? Section 790.338(5) provides that practitioners ?may not discriminate against a patient based solely upon the patient?s exercise of the constitutional right to own and possess ?rearms.? Section 790.338(6) provides that a practitioner ?shall respect a patient?s legal right to own or possws a ?rearm andshould refrain from unnecessarily harassing a patient about ?rearm ownership during an examination.? The plain language of these provisions recommends that practitioners ?should refrain? from askins questions about ?rearms unless related to medical care or safety. The statute at most thus imposes a remote restriction on health care practitioners? speech. And even ifthe statute did restrict speech, Supreme Court precedent makes clear that the state can regulate doctor-patient speech as part of its power to regulate the practice of medicine, especially whole, as here, doctors retain unfettered W011 to discuss the medical care and safety of their patients. SUMMARY OF ARGUMENT 1. non-misleading speec about ?reman safety is not the ?direct target of the [Fit-em Ownets? Privacy] Act." 19. To the contrary, the Act targets discrimination against and harassment of individuals who exercise their fundamental right to keep and bear arms, while leaving physicians free to exercise their good faith medical judgment in discussing ?reanns safety with patients. 2. Although Plaintiffs claim that the Act chills their speech with their patients, the Act does not restrict the in which Plaintiffs wish to engage. Plaintiffs thus have no objectively reasonable basis for fearing disciplinary action under the Act; they therefore lack standing to challenge it. 3. Plaintiffs? First Amendment claim fails on the merits. Again, the Act taxgets discriminationand hamSSInent, notspeech, anditis?msakinto unquestionably constitutional anti?discrimination laws like the Americans with Disabilities Act and Title VII of the Civil Rights Act. Even if viewed as a speech regulation, the Act is a reasonable regulation of speech incidental to the practice of medicine well 'within the State?s constitutional authon'ty to enact. 4. Plaintiffs vagueness challenge also fails. The terms used by the Act, such as ?relevant? and ?harassing,? are not obscure, and they provide suf?cient guidance to allow Plainti?'s to conform their conduct to the law?s requirements. The Act?s provision for physicians to exercise their good-faith medical judgment further alleviates any vagueness concerns. ARGUMENT I. The Act Does Not Interfere With Doctor-Patient Regarding Firearms Safety. Itis imperative to correctthedistriet cmnt?smisreadingof?le Firearm Owners? Safety Act, for that misreading pervades the district enurt?s analysis. According to the district court, the ?direct target? of the Act is ?truthft?, non- misleading speech,? and the Act thus ?impairs the provision of medical care and may ultimately harm the patient? by ?preventing [the] patimt? ?mn receiving truthful, non-misleading information? about ?rearms safety. 11.105 at 18-19. But the Act?s plain text demonstrates that it does no such thing. 1. Section 790.338(2) states that physicians ?should refrain from making smitten inquiryorasking questions concerning the ownership ofa ?rearm or ammunition by the patient or by a family member of the patient, or the presence of a ?reemlinaprivate homeordomicile ofthe patientorafamilymemberof?ie patient,? but a physician who ?in good faith believes'that this information is relevant to the patient?s medical care or safety, or the safety of others, may make such a Verbal or written inquiry.? First, this provision isprecatory, not mandatory, for it states that physicians ?should refrain from making" inquiries about them. The Words of a statute must be given ?their ordinary, contemporary, common meaning,? Williams v. Taylor, 529 US. 420, 431, 120 S. Ct. 1479, 1488 (2000), and ?the common meaning of?should? does not command but merely ?suggests or recommends a comse practical." United States v. Maria; 186 F.3d 65, 70 (2d Cir. 1999). Indeed, this 001111 has held that a rule stating that a person ?should witthId all further is precutory rather than manthtory,? and therefore could not be the basis for imposing disciplinary sanctions. United States v. Robinson, 922 1531, 1534 (1 1th Cir. 1991). See also Carey v. Wolnitzek, 614 F.3d 189, 206 (6th Cir. 2010) (Ethical canonsproviding that elected judges ?should not? solicit campaign contributions are ?hematory.? but canons saying they ?shall 11 are mandatory); QWI Corp. v. FCC, 258 F.3d 1191, 1200 (?lOth Cir. 2001) (The use of ?should" merely ?indicates a recommended course of action, but does itself imply the obligation associated with ?shall.? Of special import in interpreting the words of the Florida Legislature is the doctrine of the Florida Courts that ?[u]se of the word ?should' indicates? that the rule ?is discretionary rather than mandatory in name.? University of S. Fla. v. Tucker, 374_So.2d l6, l7 (Fla. Dist. Ct. App. 1979). See also State v. mamas,_528 Sold 1274, 1275 (Fla. Dist. Ct. App. 1988) expresses mere appropriateness, suitability or The Legislatme's use of the mandatory ?shall? earlier in the vety same sentenoe con?rms that its use of the hortatory ?should" was deliberate. Under 790.33 physicians ?shall respect .a patient's right to privacy and should refrain from making a written inquiiy or asking ques?ons? about fm. When ?a legislature uses different terms in the very same statutory provision, [courts] take cognizance of that choice by presuming the legislature intended the different Words to carry with them (their traditional) di??erent meanings." Regional Air, Inc. v. Canal Ins. Co., 639 F.3d 1229, 1238 (10th Cir. 2011). The ?common meaning of the term ?should' suggests or recommends acmnse of action, while the ordinary understanding of ?shall? describes a course of action that is mandatory.? Maria, 186 F.3d at 70. See also Union Elev. Co. v. Consolidation Coal Co., 188 F.3d 998, 1001 (8th Cir. 1999); Butler v. ?ambuigh, 900 F2d 871, 87677 (5th Cir. 1990). Thus, in United States v. Rogers, 14 F. App?x 303 (6th Cir. 2001), the Sixth Circuit held that ?Congress?s use of the mandatory ?shall? eight words before ?should? further indicates that'Congreu apprehended a distinction between the two terms,? and that Congress meant the latter instruction to be merely ?hortatory,? id. at 305. The same is true with respect to the hortatory recommendation about physician gun inquiries in section 790.3380). The statute on its face merely makes a recommendation and it thus raises no First Amendment issue at all. In resisting this conclusion, the district court reamed that interpreting ?the law as hortatory would render meaningless the law?s provision that violations of the law shall constitute grounds for disciplinary action.? K80 at 9. But this is simply not so, for the Act contains several ?rm commands, such as the anti- discrimination provision, that would remain the subject of disciplinary action. Furthermore, while ?[t]he word ?should? can impose a mandatory rule of conduct,? id., that is not the word's common meaning, and such usage is partiwlarly unlikely here wherethe legislature also inthevery same statutory provision. At anyrate, even iftheActwere ambiguous, ahortatoryreading of?should refrain" a reading to which the text is mdily susceptible - avoids any First Amendment issue. This Court thus has ?an obligation to construe [it] narrowly.? American Booksellers v. Webb, 9 9 F.2d 1493, 1500 (1 Cir. 1990). ?[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail.? Clark v. Martinez, 543 U.S. 371, 380-81, 125 716, 724 (2005). Indeed, ?[ilt has long been a tenet of First Amendment law that in determining a facial challenge to a stamte, if it be ?readily susceptible? to a narrowing construction that would make it constimtional, it will be upheld.? Virginia v. American Booksellers Arm?s, 484 vs. 333, 397, 108 Ct. 636, 644-45 (1975). Here, the district court not only failed to heed this basic canon of statutory interpretation, its interpretation seems designed to invalidate the statute. Second. in keeping with recommendation that physicians ?should re?'ajn? from inquiring about guns, it expressly guaramee that they may make such inquiries: ?Notwithstanding this provision, at health care practitiona' or health care facility that in good faith believes that this by?brmatien is relevant to the patient 'smedtcal care or ug?ety, or the sqfety ofothers. my: make such a verbal or written inquiry.? Thus. this exception is limited not by an objective only by the physician?s subjective ?good fai Third, the inquiry provision in all events addresses only what a physician may ask a patimt, not what information a physician may provide. As the Act's sponsor explained, this is by design: One ofthe ofthisisthatitdoes innoway prohibit a safety conversation. And so in Florida where it is estimated that we have 8 Ihopethatthisbill actually ?rms the number of safety conversations. .. My view on this is everyone should getthe ?rearms lecture. Judiciary Comm. Hr'g on H3155 at 41 :35 (Apr. 12, 2011) (Rep. Brodeur)?, available at 2. Sections 7903386) and (6) state that a physician ?may not discriminateagainst a patient based solely upon the patient?s exercise of the constitutional right to own and possess firearms or ammunition" and refrain ?om unnecessarily harassing a patient about ?rearm ownership during an examination.? These provisions target discrimination and harassment, not speech, and they do nothing to impair doctor-patient discussions of?rearms safety?' indeed, like the inquiry provision, the anti-harassment provision is simply a recommendation, not a command. The district court expressed concern that the anti-harassment provision could sti?e doctor-patinat comnmnicatim by causing doctors to refrain ?'om engaging in even good-faith questioning about ?rearms for fear that a patient may ?nd such questions ??mneoessaiily harassing.? See R.105 at 7. But given the Act's express motection of good-faith inquiries about firearm ownership, the anti-harassment provision Andinany event, section 790.33 8(4) gtmrantees that ?a patient may decline to answer or provide any information regarding ownership of a ?rearm bythe patient" 3. Section 790.338(1) states that a physician ?may not intentionally enter any disclosed information concerning ?rearm ownership into the patient?s medical record if the practitioner knows that such information is not relevant to the patient?s medical care or safety, or the safety of others.? This provision does not 10 even purport to be a restriction on physician speech; it regulates only medical record-keeping, which is urbject to extensive government regulation. See. cg, 42 U.S.C. 1320d er seq. More importantly, the restriction applies only when the physician knows firearm-ownership information is irrelevant? Le, it applies only when the physician knows that there is no legitimate reason to enter such mm in the patient?s medical records. Again, nothing in this provision impairs doctor-patient discussions of ?rearms safety. Plaintiffs Lack Standing to Challenge the Act. The district court found that Plaintiffs have standing because the Act has ?caused Plaintiff? injury by chilling their speech.? 11.105 at 7. But Plaintiffs express no desire to engage in activity that the Act forbids or discourages - rte, information that Plaintiffs themselves deem wholly irrelevant. To the contrary, Plaintiffs simply wish to ask? patients about ?rearm ownership, (ii) follbw?- up on routine questions regarding ?rearm ownership, provid[c] patient intake questionnaires that include questions about ?rearms, or (iv) orally oounsel? patients about ?rearm safety.? Id. at 6. As the foregoing discussion of the Act makes clear, so long as Plaintiffs are acting in good faith theAct does not even ?arguably forbid?? them from engaging in any of ?this activity.? Id. at 7. 11 Plaintiffs claim that their speech is nonetheless chilled by the Act. But ?[a]llegatione of a subjective 'chill? are not an adequate substitute for a claim of speci?c present objective harm or a threat-of speci?c future harm.? Laird v. Tatum, 408 us. 1, 13-14, 93 S. Ct. 2318, 2325-26 (1972). pm?ty?s subjective fear that she may be pmsecnted for engaging in expressive activity will not be held to reasonable." Wilson v. State Bar ofGa., 132 ma 1422, 1428 (11th Cir. 1998). Regardless how genuine or strong Plaintiffs? alleged fears ofdiscipline may be,3 they are not objectively tame, forthe Act by its terms simply does not rest?ct the doecnotargue otherwise. See Lopez, 630 F.3d at 788 C?plaintiffs? claims of future harm lack credibility when the challenged speech restriction by its terms is not applicable to the plaintiffs, or the enforcing authority has disavowed the applicability of the challenged law to the 3 See Lopez v. Candaele, 630 F.3d 775, 792 (9th Cir. 2010) (injury-in- fact does not turn on the sneng?i ofplainti??s? concerns about a law, but rather on the credibility of the threat that the challenged law will be enforced against them?); American Library Ass'n v. Barr, 956 F.2d 1178, 1193 (0.0. Cir. 1992) plaintiffs have standing depends on how likely it is that the government Will attempt to use these provisions against them and not on how much the prospect of mforceinent worries them"). The prospect of negative rami?cations from an unfounded patient?initiated complaint with the Department of Health is likewise remote given that patient complaints remain con?dential unless probable cause of a violation is found. See NEWSIAI. 455,973l4l- . .. 12 The Act Does Not Violate the First Amendment. 1. 'lhe First Amendment does not give a physician the right to discriminate against and/or harass a patient who chooses-t0 exercise her ?mdnmental Second Amendmentright own a ?rearm, merely because that discrimination or harassment may take the form of speech. ?It has neVer been ofspeechotpresstomake acourse ofconduct illegal metely because the conduct was in part initiated, evidenced, or carried out by- means of language, either spoken, written or printed.? Romsfeld v. Forum for Academic Institutional Rights, Inn, 547 U.S. 47, 62, 126 S. Ct. [297, 1308 (2006) (emphasis added). ?movidious private discrimination never been accorded affirmative constitutional protections," Hishon v. King Spalding, 467 U.S. 69, '78, 104 S. Ct. 2229, 2235 (1984) (emphasis added), and anti- discrimination laws "are well within the State?s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination" Hurley v. Irish-American Gay, Ligbian Bismal Gm. of 30.7., 515 US. 557, 572, 115 S. Ct. 2338. 2346 (1995). 5080150 United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006) (speech intended to ?harass and frighten is not constitutionally protected?); United States v. Lampley. 573 F.2d 783, 787 (3d Cir. 1978). i3 Here, the legislature had before it ample evidence of ?rearm owners being targeted by medical professionals in Florida. Examples of incidents that were recounted during the legislative process include: - motherthatshehad 30days to ?ndanew pediatrician whenthe motherrefusedto indicatewhethershehad ?rearms in the home, 11.87 at l; A owneda ?remandthenasking id. m2; 0 A family being misinformedthatitwas ?a Medienidnecessity to answer a?rearmsquestion,? id.at3; and 0 A mother being separated from her children while medical personnel inten'ogated the children about guns, id. These and other incidents re?ected in the legislative record did not take place in a vacuum - some prominent medical groups have long crusaded against guns and the exercise of Second Amandment rights. For example, the American Academy of Pediatrics (AAP) the Florida chapter of which is a plaintiff here has advocated ?bans of Maxim" and advised pediatricians to ?urge parents who possess guns toremove them from the home.? AAP, Committee onlnjury and Poison Prevention, Firearm-Related Injuries ?eeting the Pediatric Population, 105 PEDIATRICS 888, 893 (2000). The group?s website not only advises parents "to 14 NEVER have a gun in the home,? but it also encourages them to spread the anti- gun message: ?[fjind out if mere are guns in the homes where your children play? and, inthe house aboutthe dangers ofgunsto their families." See WW mm in its amicus curiae briefs to the Supreme Court in recent cases involving the Second Amendment, the AAP announced its goal of ?removing handguns ?'Om honies and communities across the country.? Briefof me AAP e: at. as Amici Curiae in Support ofPeti?oners at 1, Disxriet afCqumbla v. Heller, 554 US. 570, 128 s- Ct. 2783 (2008) (No. 07-290), 2008 WL 157189; Brief for Organizations Committed to Protecting the Public?s Health as Amici Curiae in Support of Respondents at l. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (No. 08-1521), 2010 WL 59033 .5 Against this backdrop, the Florida Legislature was plainly justi?ed in passing all the challenged provisions of the Firearm Owners? Privacy Act. The anti~discrimination and anti?harassment provisions, of course, directly address discrimination ofgun owners. The inquiry and medical? 5 The AAP is not alone in seeking to prevent the exercise of constitutional rights. The American College of (ACP) - the Florida of which is also a plaintiff here ?thinks that physicians must become more active in . .. community e??orts to restrict ownership and sale of ACP, Firearm Injury Prevention: Position Summary, at records provisions, in turn. facilitate this aim by reducing the likelihood that the identity of members of the protectcd class will become known particulm'ly when their gun ownership is wholly irrelevant to their medical care. This is not a novel strategy. In order to protect disabled individuals from discrimination in the job market, for example, the Americans with Disabilities Act (ADA) generally prohibits prospective employers ?om ?mskfing1 inquiries of a job applicant as to whether such applicant is an individual with a disability." 42 U.S.C. 12112(d)(2)(A). The district court attempted to distinguish the Firearm Owncm? Privacy Act from ?permissible" antirdiscrimination laws like the ADA and Title VII of the Civil Rights Act on the grounds that such laws ?prosmhi? discrimination based on, certain protected classes. such as gender, race, or disability,? while the Fine- Owners' Privacy Act allegedly does not. RJOS at 11. This distinction, however, is immaterial. Like the ADA and Title VII, the Act identi?es an individual trait ?exercise of the constitutional right to own and possess ?rearms or ammunition,? 790.3386) and prohibits discrimination on the basis of that trait. Indeed, the district court?s suggestion than a ?content-neutral" anti-discrimination provision ?hvould be an available, effective alternative? is dif?cult to fathom. R105 at 20. Every anti-discrimination law must he content?based in the sense that it must 16 identify what type of discrimination is prohibited be it discrimination on the basis of race, sex, disability, or, here, cxemise of Second Amendment rights. 2. The Act does not violate the First Amendment for an additional reason: it is a reasonable regulation of speech incidental to the practice of medicine. In Planned Parenthood of Southeastern v. Casey, 505 ms. 833, 112 s. Ct. 2791 (1992), the plaintiffs challenged a law requiring physicians to provide women with certain information beforepcrfotming an abortion. They argued that because the law ?compel?ec?? doctors? speech it was ?subject to exacting First Amendment scrutiny and [could] survive only if it [was] narrowly tailored to promote a compelling governmental Emu-est.? Brief for Petitioners and CroseRespondents, Casey, 505 U.S.833, 112 S. Ct. 2791 (1992) (No. 91-744), 1992 WL 551419, at *54 (quotation marks omitted). The Supreme Court agreed that physicians? ?First Amendment rights" were ??mp?cated. but only as part of the practice of medicine. subject? not to strict scrutiny but ?to reasonable licensing and regulation by no State.? Casey, 505 vs. at 884, 112 s. Ct. at 2824 (opinion ofO?Connor, Kennedy, and Souter, 11.) (emphasis added)? There was thus ?no constitutional in?rmity" in the challenged provision. Id. ?5 This opinion is controlling on this point because it represents the ?position taken by those Membas [of the Court] who concurred in the judgment? on the West grounds." Marks v. United States, 430 US. 188, 193, 97 S. Ct. 990, 993 (1977) (quotation marks omitted). Four other justices would have applied rational b.3818 reNiaw to sustain the 9131mm Cases 5052U.S. .at 961-68, 17 Like the law at issue in Casey, the Firearm Owners? Privacy Act regulates speech only as part of the practice of medicine. The line between such regulations and is notdrawn, astliedisuictcourtwouldhave it, between laws that ?burden truthful, non-misleading speech withinthe scope of the profession? and those that do not. 11.105 at 13. Rather, ?[o]ne who takes the affairs ofa client personally in hand and purports to exercisejudgment on behalfof the client in light of the client?s individual and cirannstances is properly viewed as engaging in the practice ofa professional?s speech is incidental to the conduct of the profession." Lowe v. SEC, 472 US. 181, 232, 105 S. Ct. 2557, 2584 (1985) (White, 1., concurring in the result). It is only when 7111: personal nexus between professional and climt does not exist, and a speaker does not purport to be exercising judgment (in behalfof any particular individual with whose circumstances he is directly acquainted. [that] government regulation ceases?to function as a legitimate regulation of professional practice with only incidental impact on speech.? Id.; see Accountant ?3 Soc'y of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (?Justice White?s conctmenec provides sound. speci?c guidelines for determining? the ?point at which a measure is no longer a - 112 S. Ct. at 2867-68 (Rehnquist, CJ., concurring in judgment part and dissenting in part, joined by White, Scalia, and Thomas, 11.). To the extent this differs from the ?reasonable regulation? standard applied by the controlling opinion, it is even more dcferential to the State. .. IS regulation of a profession but a regulation of men"). Florida clearly has not crossed this line. The Supreme the contrary. Thompson v. Westem State: Med. Ctr., 535 US. 357,122 S. 1497 (2002), involved not doctor-patient communications but rather advertising of certain prescription drugs; indeed, the ?parties agreed that the advertising and soliciting prohibited by'the [challenged law] constitutc[d] commercial speech,? id, 535 US. at 366, 122 s. Ct. at 1503. Florida Bar v. Went For It, Inc, 515 US. 618, 115 S. Ct. 2371 (1995), likewise involved a regulation of commercial speech ?direct-tnail solicitation by personal-injury lawyers. Id., 515 US. at 623, 115 S. Ct. at 2375-76. Finally, Legal Sm Corp. v. Velasquez, 531 US. 533, 121 s. Ct. 1043 (2001), involved a government grant program designed to assist persons unable to afford legal assistance in noncriminal proceedings. but that restricted attorneys in litigation ?mded by the program from- challenging a law?s constitutionality. The case turned not on whether-the restricted speech was professional speech, but rather on Whether it was a permissible limitation on speech funded by government subsidy. See kt, 531 US. at 543-44, 121 S. Ct. at 105]. The Comtheld thatit was not, but not formsons that are rele here: the limitation ?fdistort[ed] the legal system? through a ?seriousan'd fundamental restriction on advocacy of attorneys and the functioning of the judiciary? that had 19 the effect of the Government's interpretation of the Constitution from judicial challenge." Id., 531 U.S. at 544, 547, 121 S. Ct. 1050, 1052. Citing Gentile v. State Bar of Nevada, 501 U.S. 1030, I S. Ct. 2720 (1991), the district count also stated that ?which constitutional standard should be applied in professional speech cases is still an unsettbd question of 11.105 at 13. Whether this is an accmate description ofthe ofthe law with respect to the attorney speech at issue in Gentile, Casey demonstrates that it is not the case with respect to doctors? speech. And Gentile, at any rate, is not inconsistent with Casey?s reasonableness for professional speech. The regulation at issue there a state restriction onpublic statements by attorneys representing parties in pending cases - had been applied to ?ban political speeCh critical ofthe government and its of?cials.? Gentile, 501 U.S. at 1034, 111 S. Ct. at 2724 (opinion of Kennedy, 1.). Even so, the-Court applied ?a less demanding standard than that established for regulation of the press.? Gentile, 501 U.S. at 1074,, 11! S. Ct. 2744. The Court ?balance[d] .. . the First Amendment rights of attorneys in pending cases and the State?s interest in fair hials,? and held that the regulation satis?ed this balancing test (although it struck it down as void for vagueness). Id, 501 U.S. 811075. 111 S. Ct. at 2745. 3. To the extent it regulates speech at all, the Firearm Owners? Privacy Act easily satis?es Casey?s reasonable regulation test. Indeed, given the important interests served by the Act and the nanowness with which the challenged provisions are drawn, the Act would satisfy even the most exacting First Amendment scrutiny. The district court nonetheless held that the Act?s challenged provisions cannot survive a ?balancing? of the ?State?s legitimate interests . .. against the practitioners' free speech rights." mos at 18. This holding, however, is plagued both by the district court?s overly broad viewof the law?s effect on speech and its overly narrow view of the State's interests it serves. 4. Any impact the law may have on protected speech is exceedingly remote. Even if the hortatory provisions were interpreted to be mandatory, the Act would simply prohibit a physician from discriminating against and harassing patients, and leave to the physician?s good faith judgment whether to ask a patient aboot ?rearm ownership and to record any response in the patient?s records. Even so interpreted, in other words, the Act would not interfa'e with ?the {marrow of truthful, non-misleading information? between the doctor and patient. Id. Indeed, against ?ue backdrop of acrimony between patients and physicians over the issue of ?rearm ownership and statentents by some medical organizatiom condemning gtma and gun ownership, it is apparent that the Act is designed to foster, not interfere with, the doctor-patient relationship. Patients now have reason to believe that doctors who ask patients about gun ownership and who record the 21 answers in the patients? medical records are motivated by their good faith medical judgment, not by an ideological or other non-medical agenda. And by clarifying thatdoctotscannotdiscriminatc to such questions, the Act makes it more likely that patients will participate in the conversation. The Act is thus nothing like the Eden] policy at issue in Conant v. Walters, 309 F.3d 629 (2002), which puniShed doctors for reeonunending that patients use medical marijuana? the law ofthe state whetethe doctors practiced, id. at 632. That policy truly did inhibit communication of information to patients for it flatly prohibited a physician. unlike the Firearm Owners? Privacy Act, from ?exercising his or her medical judgment" on what to recommendto a patient. Id. at 638. by striking down the challenged federal policy, Conant, unlike the district court decision here, was ?cmsistent with principles of federalism that have le? states as the primary regulators of professional conduct.? Id. at 639 (emphasisadded). 5. The Firearm Owners? Privacy Act advances several important State interests. First. the Act facilitates the exercise of Second Amendment rights by protecting citizens who choose to exercise those rights from discrimination and harassment in the provision of medical care. The district court rejected this interest as ?irrelevant? and a ?legislative illusion," apparently because the Act does not 22 address a literal prohibition on the ownership or possession of guns. 11.105 at 15. But discrimination and harassment by doctors certainly deters the exercise of Second Amendment rights, and ?[p]mtecting the ability to exercise a ?mdamental right is a compelling state interest.? Coleman v. DeWirt, 282 F.3d 908, 913 (6th Cir. 2002). Second. and remdly. the Act serves the State?s interest in protecting the privacy ofpatjents' exercise of Second Amendinem rights. The district court acoeptedthat this interestis atleastalegi?mateone. RJOS a117, butquestioned whether??c con?dentiality of this information is at risk.? id. at 17 n.5. As an initial matter, disclose this information to their doctors. While the ?provision that allows a patient to simply re?ne to answer any questions about ?rearm ownership" certainly addresses this concern, id., that provision is buttressed by the provisions harassing patients who choose to exercise their right to stay mum. Furthermore, with do it is a common-sense proposition that recording it in their medical records will increase the likelihood that o?lers will gain access to it. Indeed. this concern will only grow more pressing as more and more health care providers move to the use of electronic medical records. See. Sarah Clone, Report: thor Electronic 23 Medical Records Overlook? Security Gaps, pbs.org, May 17, 2011, at Third, the Act serves the State?s compelling interest in reducing the likelihood that individuals will suffer discrimination and in the provision of medical care. As the Supreme Court has held, ?acts of invidious available services causeunique evils that govemment has a compelling interest to prevent.? Roberts v. United States Jayceas, 468 US. 609, 628, 104 S. Ct. 3244, 3255 (1984). Indeed, the compelling interest in protecting individuals from disorimination asapatientmay alrendy be in a fragile state and exigent circumstances may circumscribe apatient's choice of providers. The State thus has a strong interest in protecting both the and the ?physical . .. well-being of the patient held ?captitie? by medical Madsen v. Women 's Health Cm, Inc, 512 US. 753, 768, 114 S. Ct. 2516, 2526 (1994). Applying this reasoning. the Court in Mam-a upheld an injimction restraining pm-life dunonsu'ators loud protests ?within earshot of the patients? inside an abortion clinic, reasoning that the ?First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.? 1d,, 512 U.S. at 24 772,114 S. Ct. at2528. Ifa State may ka spOCial stepcto protect patients at medical facilities from manned SpeOCh and conduct originating outside those facilities, surely they may do the same when the speech and Conduct originates ?'om doctors Wes. The district court deemed the State?s anti-discrimination interest ?dubious? relationship if the patient refuses to answer questions regarding ?rearm ownership.? R105 at 16. To be sure, the Act "does not alter existing law regarding a physician?s authoriza?on to choose his 01' her Meats.? Butthe factthatthelegislature chose tobalanceim discriminationwith other legitimate interests doeenotrenderthat interest ?dubious." Indeed, legislation pursues its pmposes at all costs.?_ Mohamed v. Palestinian Auth, 132 S. Ct. 1702, 1710 (2012). And it was certainly legitimate forth: le 'lamretostrike thebalanoe itstruckhete? ?irboththedoctor?s andthe patient? 8? bene?t: A doctor should not be forced to continue a donor-patient relationship when he is so incensed by a patient declining to answer a question about gun ownership that he desires to terminate it. The district court also faulted the State for relying on ?anecdotal information? to support this interest. K105 at 16. But certainly nothing more was required, particularly in light of the slight imposition'the Aot imposes On 25 physicians? First Amendment rights. Indeed, even in ?applying strict scrutiny" the Supreme Count has ?permitted litigants to justify [speech] matrictions based solely on history, conscious, and simple common sense.? Florida Bar, 515 US. at 628. 115 S. Ct. at 2378 (quotation marks omitted). Fourth, consistent with Case? the Act serves the State?s important inmost in regulating the medical profession. Florida heavily regulates speech incidental to medical practice. Practicing medicine without a license is a third degree felony. FLA. STAT. Individuals thus law?Jlly cannot engage in speech consisting of ?diagnosis, treatment. opelntion, or preemption for any . .. physical or mental condition? without the State?s prior pennission. Id. 458.3050). Doctors are to provide patients with ?information concerning diagnosis, planned course of treatment. alternatives. risks. and prognosis" but'not when patients ?re?ne this information.? Id. 381 Doctors must notify patients in person about halm?ll adverse incidents. Id. 456.0575. Doctors genei'ally cannot refer patients to entities in which they have an investment interest. Id. We could multiply these examples. The Firearm Owners? Privacy Act is another reasonable regulation of medical practice. It exhorts doctols to stick to practicbzg medicine when examining patients, rather than pushing their own political agendas, and it protects patients from doctors who re?lec to do so. And as we have explained, the Legislature had ample reason to believe that some doctors need this encomagcment in the context of Second Amendment rights. IV. The Act Is Not Uncons?tntionally Vague. l. The district coun also the record-keeping, inquiry, and anti-harassment provisions void for vagueness. First, to survive a vagueness challenge, a statute's prohibition must be clear enough to ?enableD the ordinary citizen to conform his or her conduct to the law." Horror: v. City of St Augustine, 272 F.3d 1318, 1330 (11th Cir. 2001). But, again, at least with respect to the inquiry and anti-harassment provisions there is no prohibition to which anyone must ?fconform his or her conduct," because the provisions are merely hortatmy. These provisions require nothing and compel nothing and therewa could not be unconstimnonal even ifthey were vague. There can be no chilling e?'ect on speech where the law merely makes a that the speaker is not compelled to obey. Second, even the homtory recommendation to refrain from ?rearms inquiries is subject to a broad exception for inquiries that the physician ?in good faith believes? are ?relevant to the patient?s medical care or safety, or the safety of others." 790.33 111:: record-keeping limitation likewise applies only when the physician ?knows? that gun-ownership information ?is not relevant to the patient?s medical care or safety. orthe safety of others." 790.3380). These 27 scienter requirements evisceratc Plaintiffs? vagueness claim because "scienter requirements alleviate vagueness concem5." Gonzales v. Carhart, 550 U.S. 124, 149-50, 127 S. Ct. 1610, 1628 (2007). The ?Act cannot be described as ?a trap for those who act in good faith.? Id. See also Karlr'n v. Faust, 188 F.3d 446, 473 (7th Cir. 1999) (holding that a stahate under which ?a physician may rely on his or her ?best medical judgment? [to comply] provides fair wanting of the conduct expecwd of physicians and is more than adequate to protect against any arbitrary enforcement of [the law] by state of?cials?). Third, ?perfect clarity and precise guidance have never been required even of regulations that restrict upressiveectivity,? Holder v. Hmanitarian Law Project, 130 S. Ct. 2705, 2719 (2010), and the meaning of the purportedly objectionable terms employed by the statute are hardly obscure or unfamiliar. 2. ?Relevant.? The Act employs the term ?relevant? ?ve times, in each instance followed by the phrase ?to the patient?s-medical care.? The concept of nwdical relevance is ?rmly embedded in the luw.? 7 See. Coal Co. v. Director, Of?ce of Workers' Comp. Programs, 484 U.S. 135, 149-52, 108 S. Ct. 427, 434-37 (1987) (regulations providing for the admissibility of ?all relevant medical evidence? in black-lung claims); C. G. Willis. Inc. v. Director, O?lce of Workers' Comp; Programs, 31 F.3d 1112, 1115 (11th Cir. 1994) (?relevant medical diagnosis" needed before eruployer can be held accountable); 38 C.F..R. 21.284 (treatmmt available based on "relevant medical ?ndings?); 42 U.S.C. 300311-11 (petitions under National .Ini'utv Compensation Wrench: vailahlc relevantmedical 28 Noting Plaintiffs' contention that, ?in the context of preventive medicine, information about a patient?s use or possession of ?rearms is always relevant,? R105 st 21-22, the district court hesitated to eocqat an interpretation of the relevance exception that allegedly ?would render that clause meaningless or super?uous? and thus found the provisions containing the exception unconstimtionally vague, id. at 21. But the district court?s concern lacks merit: the inquiry and record-keeping provisions apply broadly to ?health care not just to practitioners of preventive medicine; While a primary care physician may in good faith believe that a patient?s ?rearms ownership is always relevant, the same may not be the case for, say, an doctor. Furthermore, while Plainti?'s may have a good faith belief that information about a patient?s gun ownership is always relevant, it does not ?ollow that prevmtive care practitioners think the same way. The district court?s concern about ?meaningless or super?uous? statutory language is thus. misplaced, and it does not render the straightforward relevance exceptions unconstitutionelly vague. 3. ?Unnecessarily Harassing.? In Eckhardr, this Court rejected a vagueness challenge to a federal statute that outlawed making ?harassing? telephone calls. ?[Tlhe telephone harassment statute provided suf?cient notice of records"); 46 U.S.C. 3507 (vessel owners required to ?preserve relevant medical evidence? in cases of rental assault) 29 its prohibitions because citizens need not guess what terms such as ?harass? and ?imimidate' mean." Ecldxardt, 466 F.3d at 944. The meaning of such terms ?can be ascettaitwd fairly by Ie?erenee to judicial decisions, common law, dictionaries, and the words themselves because they possess a common and generally accepted meaning.? Id. The same is true here. Thus the harassment from which physicians ?should refrain? under 790.338(6) includes ?[w]ords, conduct, or action directed at a speci?c person" that ?annoys? that person ?and serves no? legitimate purpose.? LAW DICHONARY 784 (9th ed. 2009). ?me inclusion of the adverb ?unnwesaarily? does not change matters. To the contrary, it simply underscores the pnovision? discouragement ofharanguing patients about ?rearms ownership for no legitimate purpose. - CONCLUSION For these reasons, the judgment below should be reversed. Dated: September 24, 2012 Respectfully submitted, W- CharleeJ. David H. Thompson Peter A. Patteram COOPER KIRK, PLLC 1523 New Hampshire Ave, NW Washington, D.C. 20036 (202) 220?9600 Coimsel?r?mim Curiae 30 CEREELCATE 0F (3&ng I certify that this brief complies with the type-volume limitation set foxth in FED. R. APP. This btief'conmins 6,994 words. September24,2012 MM CharlesJ.C per Counsel for Amicus Curiae RTIFI OF VICE I HEREBY CERTIFY that on September 24, 2012, a true and contact copy ofthe fonegoing, with ?rst class postage prepaid, has been deposited in the U.S. addresses are listed below: Pam Bondi Gerald Edward Greenberg Jason Vail Gordon McRne Mead Ir. Timothy David Osterhaus Steams Weaver Miller Weissler Attorney General?s Of?ce . Alhadeff 8: Sitterson, PA The Capitol 150 Flagler St. Ste 2200 Tallahassee. FL 32399?1050 Miami, FL 33130 Dennis G. Kainen Anthony T. Caso Weisberg Kainm, PL 1401 Brickell Ave, Ste. 800 Miami, FL 33131?3504 Douglas Hallward-Driemeier Bruce S. Manheim Jr. Julia Lewis Augustine Ri'pa Ropes Gray LLP 700 12th St. NW, Ste. 900 Washington. DC 20005 Jonathan E. Lowy Daniel R. Vice Brady Center to Prevem Gun Violence 1225 St NW, Ste. 1100 Washington. DC 20005 Hal Michael Lucas . Hal M. Lucas, EA 701 Brickell Ave, Ste. 1650 Miami, FL 33131 Center for Constitutional Jurisprudence Chapman Univ. School of Law 1 University Dr. Orange, CA 92866 Thomas Richard Julin Hunton Williams, LLP ll 11 Brickell Ave. Ste. 2500 Miami, FL 33131 Randall C. Marshall ACLU Foundation of Florida, Inc. 4500 Biscayne Blvd. Ste. 340 Miami, FL 33137 Edward M. Mullins As?garraga Davis Mullins Grosnnan, PA Ste. 1650 701 Brickell Ave. Fl. 16 Miami. FL 33131 September 24, 20:2 From: MPHammerlanImm Sent: Thursday, July 07, 2011 9:06 AM To: Cunningham, Katie Subject: NRA opposition to P1 Attachments: SOJ-NRAoppositionmle?onpdf Case Document 50?1 Entered on FLSD Docket 07105/2011 Page 1 of 30 Exhibit A Case Document 50-1 Entered on FLSD Docket Page 2 of 30 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case NO. 11-22026-Civ-CoodeuI-no?? DR BERND wouscmAEGER, a a1,. Plaintiffs. V. RICK SCOTT. in his Of?cial capacity as Governor of the State OfFlorida, qt aL, Defendants, and NATIONALRIPLE ASSOCIATION, Proposed Intervenor. NATIONAL RIFLE ASSOCIATIONS BRIEF OPPOSING MOTION Ton A muggy mm QTION Case Document 50-1 Entered on FLSD Docket 07/05/2011 Page 3 of 30 2.83: TABLE OF AUTHORITIES ii INTRODUCTION AND BACKGROUND 1? ARGUMENT 1 2 1. LEGAL STANDARD 2 II. PLAINTIFFS CANNOT SHOW A SUBSTANTIAL LIKBLIHOOD 0F SUCCESS ON THE MERITS. -. 3 A. 3 B. The Act Does Not Inpose A Restriction on Physician Speech. 5 790.3380) . 5 ?790338(5) 8 790.338(6) 9 C. The Act Does Not Violate Physicians? (or Patients?) Speech Rights. 9 The Act Is Not Unoonstitutionally Ova-broad. 15 Uncomtitutinnally Vague. 16 Relevant 18 Discrimination. -. 18 Harassman m. NONE OF THE OTHER FACTORS SUPPORTS AN INIUNCTION 19 Plaintiffs Have Not Shown Irrepmble Harm. l9 Nci?m the Balance Ofthe Equities North: Public Intutsf Supports An Injunction- 20 CONCLUSION 20 Case Document 50-1 Entered on FLSD Docket 07(05/2011 Page 4 of 30 IES 9m 2920; Accauum's Soc?y ofVirgim'a v. Bowman, 860 F.2d 602 (4th Cir. 13 ACLU v. Miami-Dada School Rd 557 F.3d 1177 (11th Cir. 2009) 3 American Library Ass'n v. Barr, 956 F.2d 1178 (DC. Cir. 1992) 4 Asaciacian de Emplcados del Area Canalen'a v. Panama Canal Comm'n, 453 F.36 1309 (1 1111 Cir. 2006) -. 13 Btoedom v. Grube, 631 F.3d 1218 (11111 Cir. 2011) 3, 19 Butler v. Thomhurgk, 900 F.2d 871 (51h Cir. 1990) 6 CG. Willis, Inc. v. Dimctar, 31 F.3d 1112 (111.11 Cir. 1994) 18 California. 5mm QfOptometry v. F.T.C., No. 89-1190. 1989 WL 111595 (D.C. Cir. Aug. 15. 1939) . . 20 Carey v. Wobu'tzek, 614 F.3d 189 (6th Cir- 2010) 5 Clark v. Martinez. 543 us. 371 (2005) 9 6 Coalitianfor Econ. Equity v. Wilsqn, 12.2 F.311 718 (9th Cir. 1997) 20 Coalition :0 Mend A?'l'rmativa Action v. mm, 473 F.3d 237 (6111 Cir. 2006) 20 Coleman v. mum. 282 F.3d 900 (6th Cir. 2002); 13 Conan: v. Walters, 309 F.3d 629 (9th Cir. 2002) 13. 14 Coral Springs Street Sys" Inc. v. City afSunn?se, 371 F.3d 1320 (11th Cir. 2004) 3 Cotton States Mm. Ins. Co. v. Anderson, 749 F.2d 663 (1 Cir. 1984) 36 v. City of CleanmIer, 985 F.2d 1565 (11th Cir. 1993) 15 Email: v. City zj'lacksonville. 422 US. 205_ (1975) 14 Florida Right to Life-v. Lamar. 273 F.3d 1318 (11111 Cir. 2001) 6 Frazier'ex n1. Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008) 13 Gonzales 1. Carhart, 550 U.S. 124(2007) 17 Holder Humanitarian IawProjact, 130 S. 0. 2705 (2010) 18 Hanan v. any ofSI?. Augustine, 272 F.3d 1318 (11111 Cir. 2001) l6 Karlin v. Faust, 188 F.3d 446(711) Cir. 1999) 1'7 Laird v. Tatum. 408 US. (1972) . 4 Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) 4 Low 472 US. 181 (1985) 12, 13 Madsen v. Women 's Health Center, Inc, 512 US. 753 (1994) - -.14 ii Case Document 50-1 Entered on FLSD Docket 07/0512011 Pages of 30 Marks'v. United States, 430 U.S. 188 (1977) 10 Mock v. Bell Helicopter Textmn, Inc, 373 Fed. Appx. 989 (11th Cir. 2010) 13 Morrison v. Board of Educ. of Boyd County, 521 F3d 602 (6th Cir. 2008) 4 Mullins Coal v. Director, 484 U.S. 135 (1987) 18 NewMotor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) 2O Nken v. Holder, 129 S. Ct. 1749 (2009) 19, 20 Northeastern Fla. Chapter of the Ass?n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283 (11th Cir. 1990) 2 Planned Parenthood ofSe. Pa. v. Casey, 505 U.S. 833 (1992) 9, 10 Qwest Corp. v. FCC, 258 F.3d 119] (10111 Cir. 2001) . 6 Regional Air, Inc. v. Canal Ins. Co., 639 P.3d 1229 Cir. 2011) 6 Roman v. U.S. Post O?ice Dep't, 397 U.S. 728 (1970) l4 Siegel v. LePorz, 234 F.3d 1163 (11th Cir. 2000) 19 State v. mamas. 528 So; 2d 1274 (Fla. Dist. Ct. App. 1988) 5 Tull v. United States, 481 U.S. 412 (1987) - 6 Union Elec. Co. v. Cons'ol. Coal, 188 F.3d 998 (8th Cir. 1999) . 6 United Presbyterian Church in the use v. Reagan, 738 F.2d 1375 (DC. Cir. 1934) 4 United States v. EcHtardt, 466 F.3d 938 (l 1111 Cir. 7006) 18, 19 United States v. Maria, 186 F.3d 65 (2d Cir. 1999) 5, 6 United States v. Robinson, 92-2 F.2d 1531 (11th Cir. 1991) 5 United States v. Rogers, 14 Fed. Appx. 303 (6th Cir. 2001) 7 United States v. Salerno, 481 U.S. 739 (I987) 16 United Steelworkers v. Weber, 443 U.S. 193 (1979) 18 University of So. Florida v. Tucker, 374 So. 26 16 (F11 Dist. Ct. App. 1979) 6 Village of Ho?'rnan Estates v. -F'lipside, 455 U.S. 489 (1982) 16 Williams v. Taylor, 529 U.S. 420 (2000) 7 Wilson v. State Bar of Georgia, 132 F.3d 1422 (11th Cir. 1998) . 4 Winter v. NRDC, 129 S. Ct. 365 (2009) 2 Wooley v. Maynard, 4300.8. 705 (1977) 15 'on 'slative a 42 U.S.C. 1320d 8 42 U.S.C. Small-11 18 Case Document 50?1 Entered on FLSD Dockei 07/05/2011 Page 6 of 30 46 U.S.C. 3507 . 18 47 U.S.C. 223(a)(l)(C) -. 18 38 C.F.R. ?21.284 18 FLA456.0575 10 I 458.3056) 10 10 790.338 1 790.3380) 1, 3, 8, l6 790.338(790.3386) . 7, 8 ..3, 15 790.3386) 2. 3. 8 790.338(6) 2, 3. 9, 16 790.3380) 3 AAP, Cmmn. on Injury and Poison Prevention, Firearm-Related Injuries A?ecu'ng the Pediatric Popldation, 105 PEDIATRICS 888 (2000) 11 Audio CD: chular Session House Floor on 1-13 155, held by the Florida House of Representp?vcs (Apr. 26. 201 1) ll 784 (9th ed. 2009) 19 iv Case Document 50-1 Entered on FLSD. Docket 07lO5/2011 Page 7 of 30 Committee Hearing on held by the Criminal Justice (Mar. 8, 2011Health Human Comm. Repon (April 2011) 1 WNW-WEBSTER DICTIONARY, mugging?WW 5 Case Document 50-1 Entered on FLSD Docket 07m512011 Page 8 of 30 BA Plaintiffs seek preliminary injunctiOn herring enforcement of a recently enacted marine, entitled ?An Act Relating to the Privacy of Firemms Owners,? CSICSIHB 1'55. codi?ed at m. STAT. 790.338; (?F?n'earms Privacy Act? or ?the Act?). The Act regulates the practice of medicine in Florida by providing. for ?medical privacy concerning ?rearms" and by addressing ?discrimination? against. and of, those individuals who choose to exercise their fundammal constitutional right to keep and bear arms. DE 20-3. Health Human Serve. Comm. Report (April 7, 2011) at 1. was enacted following a number of incidents (identi?ed in the legislative history) in which doctors rehreed'ro respect their patiems"1egithnate privacy interests and the exercise of their Second Amendment rights. On at least one occasion, ?a pediatrician asked a patient?s mother? during ?a routine doctor's visit" if ?there were ?rearms in the home." M. in 1-2. The mother ?felt that the questiOn invaded her privacy" and when she ?refused to answer. the doctor? terminated the doctor-patient relationship and told the mother "that she 30 days to ?nd new pediatrician." Id. at 2. There are several provisions of the Act at issue here: Section 790.338(1) protects the privacyofpatients byban'ing ?intentionally enter?ng] any disclosed information concerning ?rearm ownership into the patient?s mediealreeord ifthe practitioner blows Matsuch?irg'onnation is not relevant to the patient?s medical care or safety, or the eddy of crime." (Emphasis added.) Section 790.338(2) provides that practitiom ?shall respect a patient?s right to privacy and should refrain from making a written inquiry or questions concerning the ownership of a ?rearm or ammunition by the patiimt or by a family member of the patient. or the presence ofa?rear'ms inaprivate home or other domicile. . .. Notwithstanding thispmvision. a health Case Document 50?1 Entered on FLSD Docket Page 9 of 30 care practitioner or health cm'efocility that in good faith believes that this information is relevant to the patient's medical care or safety, orthe safety quthem, may make such a verbal or written inquiry." (Emphasis added.) Section 790.3386) practitiouers ?may not discriminate against a patient based solely upon the patient'a exercise of the constitutional right to own and possess ?rearm." Section 790.338(6) provides that a practitioner ?shall respect a patient?s legal right to own or possess a firearm and should refrain from unmcessarily harassing a patient about ?rearm ownership during an examination." (Enphasia added). The plain language of these provisions imposes no restriction on health care practitioners? Speech. Rather. the statute recommends that practitioners "should refrain? ?'om asking questions about ?rearms unless related to medical care or safety. And even if the statute did restrict speech, Supreme Court precedent makes clear that the state can regulate doctor-patient speech as part of its power to reguhte the practice of medicine, especially where, as hererdoctom retain unfettered discretion to discuss themedical care and safety of their patients. LEGAL STANDARD preliminary injunction is an extraordinary remedy never awarded as of right.? Winter v. NRDC, 129 s. Ct. 365, 375 (2009). "mummy injunctions of legislative must be granted reluctantly and only upon a clear showing that the injunction . .. ,is de?nitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts." Northeastern Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jaclo'onville, 896 F.2d 1283, 1285 (llth Cir. 1990). A movant nutst ?clearly establish all of the following requirements: (1) a substantial likelihood of success on the merits; (2) irreparable Case Document 50-1 Esrgered on FLSD Docket 07/05/2011 Page 10 of injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not he adverse to the public interest." Bloedom v. Gm, 631 F.3d 1218, 1229 (11th Cir. 2011) (citations omitted). ?Faihu'e to show any of the four ?actors is fatal,? ACLU v. Miami-Dada School Rd, 557 F.3d 1177, '1 198 (11th Cir. 2009), but in any event plaintiffs cannot meet' any of the requirements. II. PLAINTIFFS CANNOT SHOW A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. A. Plaintll? Plainti?s not askpatients about?rearmownership absent agood faith belief that such information is relevant to patients? medical care or safety, or the safety of ethane, let alone record such information in their patients? medical records despite knowing that it is irrelevant. m. Sm. See First Amended Complaint in 41-42, 74, 76, 7'9, 83, 85. And plaintiffs certainly do not allege that they discriminate against or mulecessarily harass their gun-owning patients. st Further, as demonstrated below in Part B, the sections of the Act that supposedly restrict speech are merely hortatory. 790.3380), (6). Accordingly, plaintiffs have no reason to fear dhcipline for speaking as they allege they wish Although plainti?s claim that their speech is nonetheless chilled by the Act, it is well settled that of a subjective ?chill? are not an adequate substitute for a claim of Although plaintiffs seek an injunction ofthe Act in its entirety, see 1 Ex. A. they do not?and could not plausibly-allege any injury from sawections (3). (4), or (7) of section 1 of the Act, see 4 m6. It is thus beyond dispute that they lack standing to challenge these provisions. These provisions are among the Act?s-most important. for they establish that patients and not provide information about gun ownership and that insurers may not discriminate against gun own. See FLA. STAT. This Court at a minimum should preserve these provisions. See Coral Springs Street Syn, Inc. v. City of Sunrise, 37] P.3d 1320, 1347 (11th 01112004) (?federal courts have an af?rmative duty to preserve the validity of legislative enactments when it is at all possible?) (quotation marks omitted). 3 Case Document 50-1 Eggered on FLSD Docket 07l05/2011 Page 11 of speci?c present objective harm or a threat of speci?c ?lture harm.? Laird v. Tatum. 408 US. l, As then-Judge Scalia explained: immediatethreatof concrete. harmful action. The former consists ofpreoent detelrence fromFil-st Amendment conduct because of the dif?culty of determining the application of a regulatory provision to that conduct, and will not by imifs?uppon standing. The latter?huminence of concrete, harmful action such as threatened arrest for speci?cally contemplated Fits! Amendment anti y?does support standing. United Presbyterian Church in the USA v. Reagan, 738 13.26 1375, 1380 (DC. Cir. 1984) (Scalia. J.) (emphasis added). 11]fno credible threat ofprosecution looms, the chill is insuf?cient to sustain the burden that Article imposes. A party?s sub' 've fear that she may be prosecuted for engaging in expressive activity will not be held to constitute an injury ?or standing purposes unless that fear is objectively reasonable. Wilson v. State Barqf Georgia, 132 F.3d 1422. 1428 (11th Cir. 1998) (quotation marks omitted). Regardless how gemine or strong they may be? planner alleged fears of discipline ate not obpctively reasonable, for theAct by in terms simply does not restrict the speech in which they claim they wish to engage, and the State does not argue otherwise. See Lopez, 630 F.3d at 788 ("plaintiffs? claims harm lack credibility when the challenged speech rematch by its terms is not applicable to the plaintiffs. or the enforcing has disavowed the applicability of-the challenged law to the Therefore plaintiffs lack standing and the complaint should be dismissed. 2 See also, Morrison v. Board ofEduc. afBoyd County, 521 F.3d 602, 609 (6th Cir. 2008) (?absent proof of a cencrete harm. where a First Amendment plaintiff only alleges inhibition of speech, the federal courts routinely hold that no standing exists?) (collecting cases). 3 see lopez v. Candaele, 630 F.3d 775, 792 (9th Cir. does not turn on the strengthofplaintiffs? concerns about all: ,but rather onthe credibility challenged law will be enforced against them"); American Library Ass'n v. Ban, 956 F.2d 1178, 1193 (DC. Cir. 1992) (?Whether plaintiffs have standing . . . depends on how. likely it is that the governmentwill attemptto . . prospect of enforcement worries them"). 4 Case Document 50-1 Eggered on FLSD Docket 0710512011 Page 12 of B. The Act Does Not Impose A on Protected Physician Speech. The Firearms Privacy Act does not ?prevent? physicians and patients from discussing essential ?rearm safety guidance.? 3. The challenged provisions bar discrimination and urge?they do not comet?physicians to refrain from interrogating patients about firearms. Because these provisions are the legislature?s recommendations?and not its commands?the Act does not restrict protected speech. Plainti?'s identify four supposedly objectionable provisions of?ieAct,bmineachcasethcy text ofthe statute. 9 790.3380). First, Plaintiffs contend that 790.3380.) ?di1ects_practitioners to 'refrain from making? any inquiry concerning the presence of ?rearms in the patient's home. H31. 4 (quoting the statute). This is untrue. Plaintiffs carefully omit the criticalterm ?om their quotation 'of Subsection ?practitioner . . . should refrain from making? inquiries about ?rearms. (Emphasis added.) The words of a statute must be given ?their ordinary, contemporary, common meaning}? Williams v. Taylor, 529 US. 420, 431 (2000), and ?the common meaning of ?sho does not command but merely ?suggests or recommends a course of action.? United 5mm- v. Maria, 186 F.3d 65, 70 (2d Cir. 1999).4 The Eleventh Circuit has held that a rule stating that aperson ?shonld withhold all further is precatory ratherthan mandatory." and dlerefore cannot be the basis for imposing disciplinary sanctions. United States v. Robinson, 922 F.2d 1531, 1534 (1 1th Cir. 1991). Ethical canons providing that elected judges ?should not? solicit campaign conuibutions are ?hortatory,? but canons saying they ?shall not' are mandatory. Carey v. Wolnitzek, 614 F.3d 189. 206 (6th Cir. 2010). The use of ?should? 11me ?indicates a necOmmended course of action, but does not itself imply the 4 The statute's use of the rather passive verb "refrain? also signals something less than a legislative command. To refrain means to ?keep oneself from . . . indulging in . . . a passing impulse.? See DICTIONARY. WW 5 Case Decument 50-1 Enotered on FLSD Doeket07I0512011 Page 13 of 3 obligation associated with the word shall.? Qwess Corp. v. FCC, 258 F.3d 1191. 1200 (1011) Cir. 2001). Of special import in interpreting the words of the Florida Legislature is the doctrine of the Florida Courts that ?Ms: of the word ?shonld? indicates" that the rule ?is discretionary rather than mandatory in nature.? University of So. Florida v. Tucker, 374 So. 2d 16 (Fls.Dist.Ct.App. 1979). See also State v. Thomas, 528 So. 2d 1274, 1275 (FleDistCLApp. 1988) ("lSlhould . . . expresses rim appropriateness, suitability or The legislature's use of the mandatory ?shall? earlier in the very same sentence con?rms that its use of the hortatory ?should" was deliberate. Under 790.3380), physicians ?shall respect a patient?s right to privacy and should refrain from making a written inquiry or asking questions? about ?rearms. (Emphasis added)? When ?a legislature uses different terms in the very same statutory provision, .[courts] take cognizance of that choice by presuming the legislature intended the di?etent words to carry with them (their traditional) different meanings." Regional Air, Inc._v. Canal Ins. (20., 639 F.3d 1229, 1238 (10th Cir. 2011). "common mailing of the term ?should? suggests or recommends a course of action, while ordinary understanding of ?shall' describes a course of action that is mandatory.? Maria, 186 F.3d at 70. See also Union Else. Co. v. Causal. Coal, 188 F.3d 998, 1001 (8th Cir. 1999) (?sbould? is ?purely precatory? whereas ?shall" is ?mandatory language"); Butler v. Thomburgh, 900 F.2d 5 Even ifthe Act wereambiguous, the Court would be obliged to adopt a reasonable interpretation that avoids constitutional questions. Florida Right to we v. Lamar. 273 F.3d 1318, 1326 (11th Cir. 2001); see also Cotton States Mut. Ins. Co. v. Anderson, 749 F.2d 663, 667 (11th Cir. 1984) (?Federal courts must be slow to declare state statutes unconstimtional"). ?[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. Ifone of them would raise a multitude of constitutional problems, the other should prevail.? Clark v. Martinez. 543 U.S. 371, 380-81 (2005); see also 11411 v. United States, 481 U.S. 412, 417 (1987). A hortatory reading of ?should reading to which the text is readily susceptible?avoids any First Amendment issue. 6 Plaintiffs do not'contend that this general directive to heaped? patient privacy on ?rearms actually restricts physician speech in any way, nor could they. 6 Case Document 50?1 Egotered on FLSD Docket 07/050011 Page 14 of 871, 876-77 (5th Cir. 1990) (useo ?should' not ?shall? is pmmtory?). Thus, in United States v. Rogers, the Sixth Circuit held that ?Congress?s use of the mandatory ?shall? eight words before 'should? ?trther indicates that Congress apprehended a distinction between the two terms," and that Congress meant the latter instruction to be merely ?hortntory.? 14 F. App'x 303, 305 (6th Cir. 2001). The same is true with respect to the hortatory recominendation about physician gun inquiries in 7903380.). The statute on its face merely makes a recommendation and does not purport to strip physicians of their professional discretion to nuke inquiries about ?rearms. ltthus raisesnoFirstAmendmentissueat all. In keeping with that physicians ?should refrain? from inquiring about guns. it expressly guarantees that they may make such inquiries: ?NoMt?hstanding no provision, a health care practitioner or health care minty that in good faith believes that this Manhattan is relevant to the patient?s medical care or safety, or the safety qfothers, may make such a verbal or written inquiry. (Euphasis added.) Plaintiffs concede that the statute explicitly carves out ample space for the speech they claim is restricted, but object'thm it ?provides no guidance as to that standard?s meaning.? 4. But no guidance is nwded: words in a statute are given their ?ordinary? meaning. Williams 529 U.S. at431, and this provision states that a doctor can ask about ?rearms ifhe believes in ?good faith" that it is ?relevant? to the patient?s "safety, or the safety of others? Thus, this exception is limited not by an objective standard. but only. by the physician?s subjective ?good faith." This unambiguous prav?nion poses no danger to First Amendment freedoms. Plaintiffs nevertheless insist that this motion ?prohibits such inquiries in routine preventative care? by physicians, and they point to another subsection, 790.3380). Pl.Br.p4~5. That provision, which Plainti?s do not challenge (and would not have Article standing to Case Document 50-1 E3rbtered on FLSD Docket ems/2011 Page 15 of challenge in any event), provides that emergency medical technicians may also make ?good faith? inquiries about ?rearms but, in coon-est to doctors, EMTs may ask about guns only if ?necessary to treat a patient during the course and scope of a medical or if ?the presence or possession of a ?rearm would pose an imminent danger or threat to the patient or others.? 5 790.3386). Plaintiffs reason that this exception somehow casts doubt on the breadth ofthe exception for physicians in 790.3380), but they have it backwards. A comparison of the twoprovisious actually con?rms thcunlimited mamboftheexeeption carvedout for?rearms inquin'es by physicians. The text expressly recognizes?4nd preserves?4hr. professional discretion that wcompenies a physician's responsibility to care for a patient?s health. 790.338u). Plaintiffs argue that this provision ?prohibits practitioners from enter?ngT? any information about firearms disclosed by a patient Iinto the patients medical record.? Pan 4 (quoting the stame). In the ?rst place, this provision does not eyen purport to be a restriction on physician speech; it regulates only medical record? keeping. which is subject to extensive regulation. See. 42 U.S.C. 1320d at s?q. More importantly, as plaintiffs are forced to concede, this provision, just like 790.3330). provides a broad ?exception[] for when a practitioner believes in' good faith that the information is ?relevant to the patient's medical care or safety, or the 349'er ofothers. ?Br. 4 (quoting 790.338( (emphasis added). Again, there is nothing ambiguous about this guarantee of the practi?riner?s professional discretion with respect to record-keeping about patient ?rearms. Plaintiffs object that this provision restricts physician speech with its supposedly ?inscrutable" command that physicians ?may not discriminate against a patient based solely upon the patient?s exercise of the constitutional right to own arul possess ?rearms" See Case Document 50-1 Eargered on FLSD Docket 0710512011 Page 16 of 5. This obje?tion is ?ivolous: the statute on its face merely proscribes ?discrimination" and does not even refer to let alone restrict speech on the basis of content." 5 790.3386). Finally, plaintiffs claim that the Legislature has restricted speech on the basis of its content by barring physicians from ?unnecessarl'ly harassing a patient about ?rearm ownership during an examination.? (quoting 790.3385?. In the ?rst place, plaintiffs have again omitted from their quotation the key operative term: the statute merely recommends that a doctor ?should retrain from unnecessarily harassing a patient.? 790.338(6) (emphasis added). Thus. for the reasons discussed above, the provision is purely precatory and does not even purport to restrict speech. In any event. Plaintiffs do not even assert?much less explain why?harassment of patients ought to be protected by the First Amendment. c. The Act note Not Violate Physicians? (or Patients?) Speech Rights. 1. Plaintiffs? First argument begins from a mistaken prennse: that regulations of speech incidental to the practice of medicine are subject to strict scrutiny. See PLBI. 6-7. The Supreme Court, however, has held otherwise. In Planned Parenthood of Smdheastem Pa. v. Casey. 505 us.? '833 (1992), petitioners challenged law requiring physicians to provide women with certain information before performing an abortion. They argued that because the law doctors? speech it was ?subject to exacting First Amendment scrutiny and [could] survive only if it [was] narrowly tailored to promote a compelling governmental interest." Brief for Petitioners and Chose-Respondents. Carey, 1992 WL 551419, at *54 (No. 91-744) (quotation marks omitted). The controlling opinion agreed that physicians? ?First Amendment rights" Were 'hnplicoted, but only as part of the practice of medicine, subject" not to strict scrutiny but ?to reasonable licensing and regulation by the 7 Part ILE. addresses plaintiffs? arguments that these provisions are uncons?tutionally vague. 9 Case Document 50-1 E3rgered on FLSD Docket 075050011 Page 17 of State.? Casey, 505 U.S. 884 (opinion of O?Connor, Kennedy, and Souter, 11.) (emphasis added)? There was thus ?no comtitutional in?rmity? in the challenged provision - Consistent with Casey. Florida heavily regulates speech incidental to medical practice. Practicing medicine without a license is a third degree ?elony. FLA. STAT. Individuals thus lawfully cannot engage in speech ?insisting of ?disgnosis. treattnent. operation, or prescription for any physical or mental condition" without the State?s prior permission. Id. 458.3050). Doctors are to proviie We: with ?information concerning diagnosis, planned course of treatment, alternatives, risks, and prognosis? - but not when patients ?refuse this information.? Id. Doctors um notify patients in person about harmful adverse incidents. Id 456.0575. Doctors generally cannot refer patients to entities in Which they have an investment interest. Id. 456053(5)(a). We could multiply these examples. The Firearms Privacy Act, which is codi?ed in Florida?s Patient?s Bill of Rights and Responsibilities, FLA. STAT. '3 another reasonable regulation of medical prac?ee. lt exhorts doctors to stick to practicing roadie-inc when examining patients, and it protects patients doctors who refuse to do 80.9 The Legislature had ample reason to believe that some doctors need this encouragement in the context of Second Amendment rights. 8 This opinion is controlling on this point because it represents the ?position taken by those Members [of the Court] who concurred in the judgment? on the narrowest grounds.? Marks v. United States. 430 U.S. 188, 193 (1977) (quotation marks omitted). Four other justices would have applied rational basis review to sustain the challenged provision See Casey. 505 U.S. at . 967 (Rehnquist. C.J., concurring in the judgment in relevant part and dissenting in part, joined by White, Scalia, and Thomas, To the extent this differs from the f?teasonable regulation" standard applied by the controlling opinion, it is even more deft-rentiul to the State. 9 The legislative history re?ects these come. See, Committee Hearing on 1113155, held by the Criminal Justice Subcommittee at 3780-38110 (Mar. 8, 2011) (available at It I riol?lds leO- .2: co W1 ?wt: 7S - . mm (Rep. Brodeur: anti?gun ?politic agenda has been moved into the examination rooms of some of the doctors of our state?). And although it was incidents 10 Case Document 50~1 ESn?ered on FLSD Docket 07/05/2011 Page 18 of The Act was not, as plaintiffs would have it, based on a ?single incident.? Fm?thermore, some health care practitioners, and some medical professional societies. are openly hostileto ?rearms and to the constitutional right to keep and hear them. For example, the Amican Academy of Pediatrics (AAP)?whosc Florida chapter is a plaintiff here?not only advocates ?bans of handguns,? but also exhorts pediatricians to ?urge parents who possess guns to remove them, especially handguns, from the home.? AAP. on Injury and Poison Prevention, Firearm-Related Injuries Affecting the Pediatric Population, 105 PEDIATRICS 888. 893 (2000). Indeed. in its briefs supporting the losing side in recent Supreme Court cases involving the Second Amendment, the AAP announced its goal of ?removing handguns from homes and communities across the country." Brief of the AAP er al. as Amici Curiae in Support of Petitioners at 1, District of Columbia v. Heller. 554 US. 5'70 (2008) (No. 07-290); Brief for Organizations Committed to Protecting the Public?s Health as Arnici Curiae in Support of RespOndents at 1, McDonald v. City ofChicogo, 130 s. Ct. 3020 (2010) (No. 08-1521)? These groups and their members have way right, of course, to their views about ?rearms; but their patients have an equal right to hold contrary views and to be protected from dkcrimination and unwarranted invasions of privacy with respect to their views. involving some doctors' antigun views that occasionedthe Act, its reach is not limited to that viewpoint: its terms apply equally to a physician who Would tout pro-gun policies. 1? The legislative record contains multiple examples of incidents between patients and physicians involving ?rearms. See, eg.. Audio CD: Regular Session House Floor Debate on HB 155, held by the Florida House ,of Representatives at 13:40 (Apr. 26. 2011) (on ?le with the Florida House of Representatives Of?ce of the Clerk) (Rep. Brodeur) (recounting three such incidents); id. at 26:20 (Rep. Attiles) (recounting one); id. at 28:15 (Rep. Baxley) (same). The AAP is not alone in taking these positions. The American College of Physicians the Florida chapter of which is a plaintiff??thinks that physicians must become more active in community efforts to restrict ownership and sale of handguns." ACP. Firearm Injury Prevention: Position Summary. at /w w. onl' 11 Case Document 50-1 Eggered on FLSD Docket 07/05/2011 Page 19 of Against this backdrop, it is apparent that the Act is designed tofosrer, not interfere with, the doctor-patient relationship. Gun-owners can rest assured that doctors who ask them about relevant to the patient?s care and well-being, and not by an ideological or other non-medical agenda. The Act clari?es that patients do not have to answer such questions and that doctors cannot discriminate against them on account of amwers they give.?2 Thus the Act regulates the practice ofmedinine by ensuring a doctor's ability to question a patient about ?rearms when the doctor believes in good faith that the information is relevant to medical care and safety, while at the same tithe discouraging practitioners from irrelevant inquiries about ?rearms and from harassing patients on the subject. Physicians remain free to advocate gun control on their own time to whomever they please, whether at public assemblies or in neighborhood canvassing, even if some of their patients imppen to be in that crowd or to reside in that neighborhood?they simply cannot prosel?ytiae in their examination rooms on their patients? time. The Act is thus on the permissible side'of the distinction between reasonable. professional regulations and outright speech restrictions: ?one who takes the a??airs of a client personally in hand and purports to exercise judgment on behalf of the client in light of the client?s individual needs and circumstances is properly viewed as engaging in the practice of a profession. [T]he professional?s speech is incidental to the conduct of the profession.? Lam v. SEC, 4'72 US. 181, 232 (1985) (White, 1.. concurring in the result). It is only when ?the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances be is directly acquainted, [that] cancems are insubstantial because doctors? ?communications with patients are already made con?dential." mm. 9. But this does nothing to assuage the cameras of patients who do not wish to divulge such information to their doctors. 12 Case Document 50-1 Entered on FLSD Docket 07/05/2011 Page 20 of 30 government regulation ceases to function as a legitimate regulation of professional practice with only incidental impact on speech.? Id; see Accountant's Soc?y of Virginia v. Bowman. 860 F.2d 602, 604 (4th Cir. 1988) (?Justice White's concmrence provides sound, speci?c guidelines for determining? the ?point at which a measure is no longa a regulation of a profession but a regulation of speech?) (quotation marks omitted). Florida clearly has not crossed this line. 2. Plaintiffs do not address Casey?s reasonableness standard and thus cannot show a likelihood of success. But the argument they do make?that the Act fails strict scrutiny?is itself faultyJ? To begin, plaintiffs assert that the State?s ?Bolt: interest? is ?to protect the ?p?vacy of firearm owners.? mm. 9. But this ignores the State?s interest in encouraging doctors it interest in protecting pa?ents' exercise of ?indamental Second Amendment rights. See Frazier ex rel. Fma'er v. MM, 535 F.3d 1279, 1284 (11th Cir. 2008) (af?rming speech restriction in light of State?s interest in ?advanc[ing] the protection of [other] constitutional rights"); Coleman v. DeWin, 282 F.3d 908, 913 (6th Cir. 2002) (?Protecting the ability to exercise a fundamental right is a compelling state interest?). Furthermore, because the Act neither amounts to a ?prohibition against practitioners asking about gun ownership? nor ?enforces a blanket ban? on such questions. plaintiffs? concerns about the Act?s tailoring are misplaced. 10-11. . Indeed, the case plaintiffs cite that is closest in point cots against them. In Conant v. Walters. 309 F.3d 629 (9th Cir. 2002), the Ninth Circuit held that the federal government?s policy of taking adverse action against physicians for recommending medic? marijuana violated ?3 Planniffs? passing assertion in a footnote that the Act would fail the commercial speech test does not su?'ice to sustain that argument. See mm. 12 n.14; Mock v. Bell Helicopter Tertran, Inc, 373 Fed. App'x 989, 992 (11th Cir. 2010); Asaciacian dc Entpleados del Ana Candler-Ea v. .Panma Canal Comm'n, 453 F.3d 1309, 1316 n.7 (11th Cir. At anyrate, given that plainti??s' strict scrutiny argument fails their argument that the Act would ?unk the relatively rehxed commercial speech test necessarily fails as well. 13 Case Document 50-1 Eggered on FLSD Docket om512011 Page 21 of the First Amendment. But the Court distinguished Casey on the ground that there ?physicians did not have to comply if they had a reasonable belief that the information [they were required to provide] would have a severely adverse effect on the physical or mental health of the pattern,? and thus physicians remained free [?ieir] medical Mamiem.? while the federal policy at issue in Conant granted doctors no such freedom Id. at 638 (quotation marks omitted). Here, plaintiffs' medical judgment is, if anything, granted freer tein than in Carey.? 3. The captive audience doctrine also suppo?s the Act. The Constitution protects a ?very basic right to be free from [undesired] sights, sounds, and tangible matter," Rowan v. U.S. Post O?'ice Dept, 397 US. 728, 736 (1970), and States may take steps to protect persons from such matter when the ?degree of captivity makes it intpractieal for the unwilling ?ower or auditor to avoid exposure.? Emmznik v. City of Jacksonville, 42.2 US. 205, 209 (1975). Under Madseu v. Women?s Health Center, Inc, 512 us. 753 (1994), patients undergoing medical examinations are su?iciently ?captive.? Madsen upheld an injunction restraining pro- life demonstrators from loud protests ?within earshot of the patients" inside an abortion clinic, reasoning thatthe?T?irst Amendment does not demandthat patients at amediealfacility undertake Herculean e??orts to escape the cacophony of political protests." Id. at 772; see id. at 768 (the State has a strong immest in protecting both the and ?physical well- being of the patient held ?eaptive? by medical circunntanee"). If States may take special cognizance in protecting patients at medical facilities from unwanted speech originating outside those facilities, surely they may do the same when the spweh originates from doctors themselves. Plaintiffs allude to the captive audience doctrine, but their misreading of the Act dooms their argument. They acknowledge that ?the State sometimes may have an interest in giving ?4 Conant also is "consistent with principles of federalism that have left states as the primary regulators of pmfessional conduct.? Id. at 639. Plaintiffs cannot say the same for their position. 14 Case Document 50-1 Earbtered on FLSD Docket 07/050011 Page 22 of effect to a would-be listener's decision not to hear a speaker?s message,? but they argue that ?the State cannot restrict speech on the assumption that all would-be listeners do not wish to hear the message.? 10. But the act does no more than ?giv[e] e?ect to a would-be listener's decision not to bear a speaker?s message?L?or more precisely, not to respond to it. For while the Act encourages doctors not to ask about ?remns ownership, it gives patients a right not to answer such questions. See FLA. STAT. (4). And that tight not to speak important First Amendment values. See Wooley v. Maynard. 430 US. 705, 714-15 (1977). 4. Plaintiffs claimthatthe Act violates patients? rightto receive information. but it does not prohibit patients from receiving anything. As the Act's sponsor explained. this is by design: One ofthe importantprovisions ofthiSis thatitdoes innowayprohibitasafety conversation. And so handguns, hopethat this bill actually increases the number of safety comers ations because they'll no longer be conditioned upon [the patient answedng ?yes? to questions] about ?rearms ownership. . . . My view onthis is emyone should . . . getthe?rearms lecture.? Tho-Act thus does nothing to infringe any right patients have to receive infonnaticn from their doctors. And plainti?'s? own conduct demonstrates that doctors are still able to pmvide whatever medical information they likelto patients. PlBr. l9 n.23. D. The Act Is Not Unoons?tll?onally Overbroad. The overbreadth doctrine exists ?to enable persons who are themselves unharmed by [a claimed] defect in a statute nevertheless to challenge that statute on the ground that it may conceivably be applied to others. in other situations not before the Court." Dimmitt v. City qf Charmer. 985 F.2d 1565, 1571 (11th Cir. 1993) (quotation marks omitted). ?5 Committee Hearing on HBISS, held by the Judiciary Committee at 41:35 (Apr. 12, 2011) (available at ,u ?Index! Lit-use 1' a - Ell Illa.? 1-1114! -. .as- (Rep. Brodeur). 15 Case Document 50-1 Egt?ered on FLSD Docket 0710512011 Page 23 of Plaintiffs cannot avail themselves of this doctrine here because they do contend to have been banned by the Act. Even if they could properly invoke overhreadth, plaintiffs would have no claim because the Act does not ?gag" or ?silence?? any physicists let alone bar a physician from speaking to a patient about ?rearms with that patient?s consent. 15, 19. As explained above: (1) the statute's recommended limits on physician inquiries about ?rearms are hottatory, and (2) the statute preserves practitioners? discretion to inquire about ?rearms whenever they deem it 'relevant to the patitnt?s medical care or safety, or the safety of others.? E. i The Act In Not Unconstitn?onally Vague. Plaintiffs also claim that the Act is unconstitutionally vague on its face. mm. 12-15. facial challenge to a legislative Act is, of course, the most dif?cult challenge to mount successfully, since the challenger must establish that no set of circumstances exists uMer which the Act would be valid.? United States v. Salemo,481 U.S. 739, 745 (1987). because their First Amendment and overhreadth claims fail. to succeed plaintiffs? must that the [Act] is impermissihly vague in all of its applicatiom.? Village quq?fman Estates v. Flipside, 455 U.S. 489, 497 (1982). Plaintiffs do not even come close to meeting this exacting standard ?rst, in a facial challenge, a statute's prohibition must be clear enough to ?enable? the ordinary citizen to?oonform his or her conduct to the law.? Horton v. City afSt. Augustine, 272 F.3d 1318, 1330 (11th Cir. 2001). But here there is no prohibition to which anyone must ?conform his or her conduct," because the law is merely hortatory: it says only that physicians ?slmuld refrain" from asking about ?rearms or unnecessarily harassing patients on that subject. See These provisions require nothing and scalpel nothing and therefore 16 Case Document 50-1 Eggered on FLSD Docket 07/05/2011 Page 24 of could not be unconstitutional even if they were vague. There can be no chilling e?ect on speech where the law merely makes a that the speaker is not compelled to obey. Second, as plaintiffs comede. even the hortatory recommendation to re?ain from ?rearms inquiries is subject to a broad "exception[] for when a practitioner believes in good faith that the information is ?relevant to the patient?s medical care or safety, or the safety of others.? 4 (quoting Thus discussing gun ownership at? gun safet; is entirely within a physician?s goodtaith discretion?411118 only badfaid: harassment of a patient, unrelated to issues of medical care or safety. is covered by the law [and again :he statute merely that physicians "should refrain? from such speech). 'lhi. scienter required eviscerates plaintiffs? claim because ?scienter requirements alleviate vague hers. concerns? Gonzales v. Carlton, 550 us. 124, 14950 (2007). The ?Act cannot be described as ?a trap for those who act in good faith.' Id. See also Karlie v. Faust, 188 F.3d 446. 473 (7th Cir. 1999) (holding that a statute under which ?a physician may rely on his or her ?best medical judgment? [tocomply] provides fairwarningoftheconduct expected is morethan. adequate to protect against any arbitrary enforcement of [the law] by state Plaintiffs complain that the scopeof the exception is unclear because the statute does not de?ne what is "relevant? to the patient?s medical care or safety. nor does it de?ne ?hamssment? or ?discrimination.? 13?14. ?But ?perfect clarity and precise guidance have never been '6 Plainti?s object that the statutory exception to mean what it says ?would render the . statute largely and thus would not address the objected-to circumstances in Ocala." Pl.Br. 13. That is untrue. First, the Qcala incident (and others) merely occasioned the legislation, whereas the meaning of the legislation is controlled by its actual text. That text unambiguously permits inquiries about firearms when, in the physician's judgment. they are relevant to medical care or safety. Second. a statute is not meaningless because it is hortatory rather than mandatmy; the legislature is just as free to recommend as to command Third. the exception shields only physicians who act in ?good ?tith.? not those who lecture their patients not to promote sa?sty, but to further the physicians' ideological or other non-medical agenda. 17 Case Document 50?1 Entered on FLSD Docket 07/05/2011 Page 25 of 30 required even of regulations that restrict expressive activity? Holder v. Humiiarian Law, Project. 130 S. Ct. 2705, 2719 (2010). Plaintiffs feign contusion about the meaning of these words, but they are hardly obscure or unfamiliar. Relevant. The Act employs the term ?relevant" 0r ?relevance" six limes, in each instance followed by the phrase ?to the patient's medical care.? The concept of medical relevance is ?rmly embedded in the law.17 Discrimination. It is hard to take seriously Plaintiffs? complaint that this familiar term is not de?ned in the Act. Even the United States Code does not de?ne ?discrimination.? although it employs the term nearly 700 times. ?It has been suggested that the concept of discrimination isvague. lnfactitisclear and no hiddenmeanings. Todiscriminateisto makes distinction, to make a difference in treatment or favor.? United Steelworkers v. Weber. 443 US. 193, 255 (1979) (quoting a Justice Department niemorandum) (emphases omitted)" Harassment. In United States v. Eckhardt, 466 F.3d 938 (11th Cir. 2006). the Eleventh Circuit rejected a vagueness challenge to a federal statute that outlawed making "harassing? telephone calls. 47 U.S.C. telephone harassment statute provided suf?cient notice of its prohibitions because citizens need not guess what terms such as and ?intimidate? mean.? Eckliardt, 466 F.3d at 944. The meaning of such terms ?can be Sec, 8.3., Mullins Coal v. Director, 434 vs. 135, 149-52 (I987) (regulations providing for the admissibility of ?all relevant medical evidence" in black-lung claims); 06. Mills, Inc. v. Director, 31 F.3d 1112. 1115 (11th Cir. 1994) (?relevant medical diagnosis" needed before employer can be held accountable); 38 CPR 21.284 (treatment available based on ?relevant medical ?ndings"); 42 U.S.C. 30033-11 (petitions under National Vaccine Injury . Compensation program require ?available relevant medical records"); 46 U.S.C. 3507 (vessel owners required to ?preserve relevant medical evidence? in cases of sexual assault). 1" Plainti?'s complain that the Act eliminates a potential area of misunderstanding by specifying that'the statutedoes notalter themlethat adoctoris free to cease providing services to apatient for any reason.? 14(citing (original emphasis). It is dif?cult to discern how the term "discrimination" is made unconstitutionally vague by the statute?s express reservation to physicians of a privilege that does not constitute forbidden ?discrimination? 18 Case Document 50-1 Eggered on FLSD Docket 071052011 Page 26 of ascertained fairly by reference to judicial decisions, common law, dictionaries, and the words themselves because they possess a common and generally accepted meaning.? Id. (quoting United States v. Banker, 372 F.3d 365, 381 (6th Cir. 2004)). The same is true here. Thus the harasrnent ?'orn which physicians ?should refrain?under 79033803) includes ?Tw]ords, conduct. or action . . . directed at a speci?c person" that ?annoys" that person ?and serves no legitimate purpose." LAW mcnomm 784 (9th at 2009). "This type or speech is not constitutionally protected.? Eckhardt, 466 F.3d at 944 (qttotation marks and citation omitted). NONE OF THE OTHER FACTORS SUPPORTS AN INJUNCTION. "It is not enough that the chance of success on the merits be ?better than negligible.? Nken v. Holder, 129 S. Ct. 1749, 1761 (2009). As we have shown, Plainti?s' prospects are precisely that: negligible. Therefore this Court need not consider other factors. Bloedom v. Grube, 631 F.3d at 1242. Nevertheless we address the remaining factOrs brie?y. Plainti?is Have Not Shown Irrepmble Harm. Invoking the First Amendmem does not establish irreparable harm The ?assertion of Fun Amendment rights does not automatically require a ?nding of irreparable injury, thus. entitling a plainti??to a preliminary injunction if he shows a likelihood of success on the merits. Rather, it is the direct penalizatian, as opposed to incidental inhibition. of First Amendment rights which constitutes irreparable injury." Siege! v. More. 234 F.3d 1163, 1178 (1 mi Cir. 2000) (en banc) (per curiam) (emphasis added, quotation marks, citation, brackets. and ellipses omitted). Thisrule has particular application here, when: the plain-words of the statute reveal that it imposes no penalty on speech, but merely offers non? binding legislative recommendations on the wope of physician inquiries about ?rearms? suggestions that physicians are free to ignore. This perhaps explains why a number of the individual physician-plaintiffs declare under oath that they will not be deterred by therAct and 19 Case Document 50-1 Eargered on FLSD Dock8107l05/2011 Page 27 of will continue to question their patients about ?rearms. 9113:. 17, 19 1123. Simply showing ?sorry: ?possibility of irreparable injury? fails to satisfy the second factor," Nken v. Holder. 129 S. Ct. at 1761, andthat?atthe very most?is plaintiffs have managed to do here. Neither the Balance at the Eqnl?es Nor the Public Interest Supports An Injunction. theopposingparty.? Id 1111762. BveniftheAct did penalize protected speech, it would be balanced out by the harm to Florida: ?[A]ny time a Stateis ofitspeophit su?ets a form of irreparable injury.? New Motor Vehicle Bd. v. Orrin W. Fox Ca. 434 US. 1345, 1351 (1977) (Rehnquist, 3., in chambers). See also Coalition for_Econ. Equity v. 122 F.3d 718. 719 (9th Cir. 1997) (same); California State 17? of 0'me v. F.T.C., No. 89- 1190, 1989 WL 111595, at *1 (DC. Cir. Aug. 15, 1989). Therefore, ?either party will suffer an irreparable injury if [the court] mlels] against it.? . . . The irreparable?harm inquiry in the end does not strongly ?avor one party or another.? Coali?on to Defend Action v. Granholm, 473 F.3d 237,_ 252 (61h Cir. 2006). QQECLUSIQE For these mesons, the motion for 11 preliminary injunction should be denied. Case Document 50-1 Eggemd on FLSD Docket 07/05/2011 Page 28 of Dated: July 5, 201] submitted, M. Gregory M. Cumno (Fla, Bar No. 217761) CARLTON FIELDS 100 SE. Second Street, Suite 4200 Miami, FL 33131 Tel: (305) 539-7417 Fax: (305) 530-0055 Charles J. Cooper? poo-W David H. Thompson" rkir 111 Peter A. Patterson? COOPER KIRK PLLC 1523 New Hampshim Ave.. NW Washington. DC 20036 Tel: (202)220-9600 Fax: (202) 220-9601 Brian S. Konkoutchos? mnkgutghosf?gmancom 28 Bagb Trace Mandeville, LA 70471 Tel: (985) 626-5052 *Pm hac vice application pending Counulfar National Ri?e Association 21 Case Document 50-1 Eargered on FLSD Docket 07/05/2011 Page 29 of I HEREBY CERTIFY that on my 5, 2011, 1 oloamnioony ?led the foregoing document withtheCIetkoftheCounusins CMIECP. [alsocertifytheforegoing documentisbemgserved this day on all counsel of record idemi?ed-on the attached Service List in the manner speci?ed. either via transmission of Notice of Electronic ?ling generated by or in some other authorized manner forthose counsel or parties who are not authOrized to receive electronically Notices of Bleetmnic Filing. Wm Goegory M. Common 22 Case Document 50?1 Eantgered on FLSD Docket 0710512011 Page 30 of SERVICE LIST Jason Vail Edward M. Mullins Assistant Attomcy General Hal M. Lucas . OFFICE OF THE ATTORNEY GENERAL ASTIGARRAGA DAVIS MULLINS Suite PL 01, 113: Capitol GROSSMAN, RA. Tallahassee, FL 32399 701 Avenue. 16th Floor Tel: (850) 414?3300 Miami, FL 33131 Tel: (305) 372-8282 Fax: (305) 372-8202 Counulfar quendann' mullins .com via Notice ofEIectmnic Filing generated by Bruce S. Ir. Douglas H. Hallward-Driemeie?r Augustine M. Ripa Julia M. Lewis ROPES GRAY LLP 700 1% Street NW, Suie 900 Washington, D.C. 20005 Tel: (202) 5084600 Fax: (202) 383-8332 Bruce. to a Jonathan E. Lowy Daniel R. Vice BRADY CENTER TO PREVENT GUN VIOLENCE Legal Action Project 1225 Street NW, Su?e 1100 Washington. D.C. 20005 Tel: (202) 289-7319 Fax: (202) 898-0059 Wig Comelfor PM: via Notice of Electronic Filing generated by 23 From: MPHammerlanlcom Sent: Thursday, July 07. 2011 9:12 AM To: Cunningham Katie Subject: NRA reply to Plaintiffs Opposition to Intervention Atladamonts: The page has now amend the following orders: "Defendants shall ?lo a Response to Plahti?'s' Motion for Preliminary Injunction on or before July 5. 2011. at 12:00 pm. Plaintiffs shall file a Reply on or before July 8, 2011.? And she adds: hearing on Motion for Injunctlon I: set for July 13, 2011. at 10:00 am." Judge Cooke has not yet ruled on NRA's Motion to Intervene - the Stem supponed the motion to Intervene Case Document 5'1 Entered on FLSD Docket 07105/2011 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. ll-22026-Clv-Cookefl?nmo? DR. BERND WOLISCHIAEGER, et al., Plaintiffs, V. RICK SCOTT, in bi- of?cial capacity as Governor of the State of Florida, at al., and NATIONAL RIFLE ASSOCIATION, Ptoposed Inmlenor. PROPOSED INTERVENOR NATIONAL RIFLE ASSOCIATIONS Case Document 51 Entered on FLSD Docket 07/05/2011 Page 2 of 11 Plaintiff? oppositiontotheNRA?smotionto intervene islmed unfounded assertion that the NRA may inject ?entirely irrelevant" ismiea'inm this litigation. Id. n2. But as owbrie?ng?led gotothe ooreof themeritsoftt?seme. Allowingthemtopat?cipam inthis caseasapartywill Court in reaching a decision that re?ects all relevant considerations relating to the merits of plainti??s? claims} ARGUMENT I. Tat: NRA 1s Em 1'0 as or? RIGHT. Plaintiffs' opposition to the intervention as of right focuses principally on the argument that the State Defendants will be adequate representatives of the interest: in this litigation. Plaintiffs? opposition-also touches on the other three requirements fer intervention as ofright: mintereatinthe impairthe ability to andtimelinees. See 2 (DE 36) (setting forth requirements forinterventionas ofright). Weeddress factors intern. Adequncy of Representation. In support of their argument that the State Defendants are adequaterepresentatlves oftheNRA?sintereets, attaches ?whenanexistingpartyseeksthe meobjectives as the would-be intervenors.? Pl. Resp. 4 (quotation marks omitted). But this presumption is a particularly ?weak? one. and to overcome it the NRA ?merely? must produce ?some evidence to mien: can-ta: brief." Pl. Resp. 2. as demonstrated by its seeking leave to do just that earlier today. 111cm, tobe sue, did arthesame timethatitsoughtleaveto intervene. But it has done so now to provide the parties and the Court with itsopposition to plainti??s? motion for a preliminary injunction in accordance with the brie?ng schedule set by the Court. lfthe Court doeegrant the niotionto intervene. werequestthatthe proposed amicus hrlefbe deemed ?led as its opposition to preliminary injunction motion. 1 Case 1:11scv-22026-MGC Document 51 Entered on FLSD Docket 071052011 Page 3 of 11 the Clark at. Putnam County, 168 R36 458, 46! (11th Cir. 1999). Indeed, to prevail onthe State Defendante' representation ?may be? inadequate; and the burden ofmnking that showing shouldbe treated as minimal.? Movie}: v. United Mine Workers, 404 U.S. 528, 538 11.10 (1972) (mm added). Asaninitialmat?aa', althoughtheNRAmd the State Defendants may share the ultimate objective of ?uphold?ngl the constimtionality? of the Firm Privacy Act, P1. Resp. 4, that does not mean that the parties? interests are identical. See Georgia v. U.S. Army Corps ofEng?rs, 302 F36 1242, 1259 (l Cir. 2002) C?ngreement on A [the] conclusion does not mean that [an existing Wei-mental pasty and a proposed intervenor] have identical positions or intelests"). And the interests extend beyond "simply? oons??nionality ofthe Act. Pl. Resp. 4. Rather. the NRA seeks to defend the direct interest its members have in the Act?s nondisclosure and anti-diminution protections, andptotecttheir privacy-2 plainti??s do not contest (I) ?utthe State Defendants an: charged with accounting for the broad public intenwt, including the interests of patients and physicians, in the operation ofFlot-ida?s health care system. see NRA Mot. 8; (2) ?mtmany ofthe State 2 The Act's protection of Second Amendment rights is not mgated by the fact that it regulates private patties.1ndeed, restrict: private party?s speech to facilitate anther's atercise of ?mdamentnl constitutional right. See hazier ex rel. ?nder v. Wim. 535 P.3d 1279, 1284-85 (11111 Cir. 2008) (holding that ?the State?s intaest in recognizing and protecting the rights ofparents on some educational issues is suf?cient to justify the [extriction of some students? ?eednm of speech?). This is in keeping with the principal that "[plrotecting the ability to exercise a fundamental right is a cmhpelling - state hm." Coleman v. Dem?, 282 F.3d 908; 913 (6th Cir. 2002) ("The mbstantive due process right in Roe is a decisionnl right against governmental interfuence, which is manihgless when a private party terminate: a woman ?3 pregnancy without her consent") (emphasis added). 2 Case Document 51 Entered on Docket Page 4 of 11 are required by law to be licensed physicians. see id (citing example of State Surgeon General); see also FL. Sm. ?4ss.307(2) (12 of 15 1303111 ofMedicine munbers must be licensed physicians); or (3) that as public of?cials the State De?endants are faced with budgetary and political considerations that private citizens and madman not. see NRA Mot. 3. Indeed. plainti?i? themselves assert that ?[m]any of the defendants are physicians who. in their individual capacities, are members of the plainn?? organization: and may personally agree with the Piaimioti'posiuom in this case.? P1. P1 Mot. 1 11.] (DE 16) (emphasis added). Smelythis is morethmenoughto make e?minm? State Defendants? reptesentntion of the inmost: ?may be? inadequate. Movich, 404 US. at 538 n.10. As we have explained?ieEleventhCinithae credited similerevidenoc in?nding inadequate representation by govemment o?icials. See NRA Mot. 8-9 (citing Clark, diam)? Plaintiffs ooumaer that in Clark the defendant govermnent o?ciele had also engaged in settlement discussions. 82: PL Resp. 5. But Clark did not place dispositive weight on this fact. Indeed, the Court concluded that the defendant o?cials simply could nottadeqmtely repxesent the proposed defendants while the plainti??e? intends.? 168 F.3d at 461; see also id at 462 (?the suggestion of settlement shows yet mother divergence of interests?) (emphasis added). Other courts have come to similar conclusions in cases in which defendant govermnentof?cialswere nndpotentielly antithetical the mm ofaproposedintervenor. 9n.s.? 3 See also Meek v. Mmopolitm Dade County, Florida, 985 F.2d 1471, 1478 (1 1th Cir. 1993). overruled an other grounds by Dillard v. Chilton County Commission, 495 F.3d 1324 (11th Cir. 2007). We do notmeanto interests of a pmposed intervenor. If, for emple, the proposed intervene: ?adopts the [existing defendant?s] brief in its cotiwty,? as inplaintiffa? paineipel case. it is likely thatthepmposed 3 Case Document 51 Entered on FLSD Docket 07/05/2011 Page 5 of 11 Wore, plaintiffs concede that parties ?heve been allowed to intervene" when they raise ?a speci?c defense that will not be asserted by the Pl. Resp. 5 (quotation marks, bmketgandellipsesomitted). Thatis precisely thecasehere: as thebriefs ?led earlier todaydemonsu'ete,theNRA suit, whilethe State Defendants did not raise this defame. Likewise, the NRA alone has invoked the captive audience doctrine and alone has objected to the scope ofthe reliefsought by pm. This divergence phinll' su?iees to establish inadequate representation despite the Attorney General?s vigorous and well-founded defense of the Act. Indeed, the Eleventh Circuit hasheld that the mere ?possibility? that an existing govemment party may choose to ?focus? on di?'etmt aspects ofaease than aproposed intervenes evinew inadequate representation. Chile: 9. Wabash, 865 F.2d 1197, 1215 (11th Cir. 1989). Suf?ciency of Interest. Plainti?'s assert that the NRA has not ?articulate[d] an interest actually at issue in this case.? P1. Resp- 7. But this assertion is based on a of theNRA?s interests in this litigation. As an initial matter, although the NRA was leading supporter of the Firearms Privacy Act, it does not seek to intervene to defend interest. Pl. Resp. 6. Rather, it seeks to protect its m-bers' interests in the Act. Fmthermore, plaintiffs do not question the NRA's authority as a general matter to represent its members' interests in federal litigation. Rather, plaintiffs attempt to cast doubt on the validity of the representational interest the NRA asserts here, which plaintiffs characterize as ?protecting mombets?] ?Second'Amendment rights.? Pl. Resp. 7 (quoting NRA M01. 5). But plaintiffs fail to tell the whole story. Here is what the NRA says in its motion: The Firearms Privacy Act ?protects NRA members from intrusive. irrelevant questioning by health care intervenor?s interests are adequately represented. Sierra Club, Inc. v. Leavm, 488 F.3d 904, 910 (11th Cir. 2007). 4 Case Document 51 Entered on FLSD Docket 07/05/2011 Page 6 of 11 pruo?donersand ofSeoondAmendmentrigbts. NRA members have a direct and substantial intere? in defending these legal protectfans from constitutional attack.? NRA Mot. 5 (emphasis added). Thus, in addition to the promotion of its - members? oomtinttionnl rights, the members have an interest in the legal protections created bythe Firearms Privacy Act. And that inta'est inthe statute?s protections is suf?cientto supportintervention. 6C?aatsnelegislatme interests, the invasion of which may confer standim' W) (quoting Diamond v. Charles, 476 vs. 54, 65 11.17 (1986)); on also id. at s-ss n.l. Plaintiffs o??er no response to this argument? Whether Diposltion of the Action May Impedeor Impnir the Propooed Intervene-?5 Ability to Protect it: Interest. Plainti??s? argument that the NRA fails to meet this requirement is based solely on its faulty argument?iattheNRA lacks an support intervention and thus requires no additional response. Timelineu. Plaintiffs makeno serious timeliness argument, not couldthey. In hackgound, weeks, ratherthan three weeks, to seek intervention becrmseulthough plaintiffs did not ?le suit ?Piainums neural interests,?pointingtom NRA member' letter opposing it published in the USA Today and thesimilar views of two other gun users. Pl. Resp. 7 11.3. But regardless of the discordant views of any pmticular member, the supportfor the Firearms Privacy Act was grounded in its members? complaims about being subject to intrusive questions about gun ownership at the doctor's o?oe. See Declaration ofMarion P. Hammer'] 6 (DE 36-2). Andto the extentsuoh materialaarerelevantto litigation, itis farmoretellingthattheFlorida Medical Association (FMA) supported the Act. See Committee Hearing on H3155, held ma: 0?3'1 (?'I'heFMArepresentsmore than20,000 physicians on issues of medical economics and education, publichealth. We andtheir patients to promote the public health, standards ofmedieal practice, and to enhmcethequalitymdavailnbility ofhealtheoreintbe Sunshine 8mm?). 5 Case Document 51 Entered on FLSD Docket 07/05/2011 Page 7 of 11 until June 6, ?the NRA had notice 1mm in ?le this suit as early as June Pl. Resp. 2 (emphasis added). Assuming for the sake of argument that the intervention clock ean di?'erencein?le timeliness allelysis. Indeed. a proposed intervenor acts not only timely but ?quickly" by seeking taintervene v. Mom Co., 558 F.2d 257, 267 (5th Cir. 1977)}5 11. Th: NRA MEETS THE REQUIREMENTS FOR PERMISSIVI INTERVENTION. Courts may grant permissive intervention whenthemovant ?has a claim ordefense that so "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties? rights.? Fm R. clv. P. The defense plainly shares a common question oflaw or fact with the main action, and plainli?'s do notargue otherwise. alongside the Florida Attorney General to defend a Florida statute from constitu?dnal attack in federalcom ll. Rather,plnintiffs won'ythat?theNRAwill attempttoinject additional, irrelevant issues into this litigation.? Pl. Resp. 8. The NRA has no such plans, as we train is apparent from our proposed opposition to plainliffs' preliminary injunction motion ?led earlier today. Indeed, the principal "additional? argument the NRA raises in its oppositilm?that plaintiffs lack standing?is far ?'om irrelevant or make-work for the Court: ?The federal courts and stamiingis perhaps Furthermore, counsel for the NRA initiated the Local Rule cenfemlce on its motion to intervene with plaintiffs? counsel on June 17. On Monday, June 20, as part of that conference, plainti?'s? counsel indicated that plaintiffs planned to ?le an amended complaint by the end of Plaindm ?ledtheiramended complaint?iatFridny, movedtointlervene the very next business day. Case Document 51 Entered on FLSD Docket 07/05/2011 Page 8 of 11 the most important of the jurisdictional doctIinGS." Inc. v. Cily afDaIlas. 493 US. 215, 231 (1990) (quotation marks and brackets omitted). The Court, in other words, is obliged to consider the puties? standing regardless ofwhether the parties bring the issue no its attention and they ampenicularly an?addi?donal bln'denand distraction? as the patties prepare for the hearing on plainti?is? preliminary injunction motion. Resp. 8. BmtheNRAhasalready dunonsumdits abilityto comply with thedemands of this-li?ge?on by adhering to the expedited brie?ng schedule on plaintiffs? motion for a preliminary injunction. AndtheNRA, likethe o?nerpar?estothiseme, seeks aswi?resolmion' of this matter. Plainti??s? none-s are thus misplaced. CONCLUSION Pet-these reasons, theNRA's motion to should be granted. Dated: July 5, 2011 Respectfully submitted, 31W GregoryM. Cesamno (Fla. BarNo. 217761) CARLTON FIELDS 100 SE. Second sum, Suite 4200 Mimi, FL 33131 Tel: (305) 539-7417 Fax: (305) 530?0055 Charles J. Cooper? . . co David H. Thompson? 5-: - . COOPER KIRK PLLC 1523 New Hampshire Ave. NW Washington DC. 20036 Tel: (202) 220-9600 Fax: (202) 220-9601 Case Document 51 Entered on FLSD Docket 07/052011 Page 9 of 11 Brian S. Koukontchos? 28 Eagle Thee Mandevillc, LA 70471 Tel: (985) 626-5052 .'Pra hac application pending Counsel?ar National Ri?e Association Case Document 51 Entered on FLSD Docket 07/05/2011 Page 10 of 11 I HEREBY CERTIFY that on July 5, 20! 1, electwuienlly ?led the foregoing document withtheCIerkofthe Comtusing CMIECF. Ialso certifytheforegoing document isbe?ing served thisday anal] counsel ofrecordiden??edonthe attached Service Iistinthemannerspeei?ed, either viau-ammission ofNotiee of Electronic ?ling generated by err in some other antha?zedmanner forthose counsel or'parties who are hot authorized no receive electronically Notices of Electronic Filing. GregoryMCaarm Case Document 51 Entered on FLSD DooketOT/0512011 P'age 11 of 11 SERVICE LIST Jason Vail Edward M. Mulli?s Assistant Attorney General Hal M. Lucas OFFICE OF THE ATTORNEY GENERAL ASTIGARRAGA DAVIS MULLINS Suite PL 01, The Capitol GROSSMAN, P.A. Ta?nhassee. FL 32399 Tel: (850)414-3300 'da mm Counsel )?br via Notice dilemma ?ling generated by 701 Briekell Avenue, 1611: Floor Miami, FL 33131 Tel: (305) 372-8282 Fax: (305) 372-8202 ll. lo 1 68 Bruce S. Mnnheim, Jr. Douglas H. Hallward-Driemeier Augustine M. Rips Julia M. Lewis ROPES GRAY LLP 700 12111 Street NW, Suite 900 Washington, D.C. 20005 Tel: (202) 508-4600 Fmaoz) 383-8332 Jonathan E. Lowy Daniel R. Vice BRADY CENTER TO PREVENT GUN VIOLENCE Legs! Ac?on Project 1225 SthW, Suite 1100 Washington, DC. 20005 Tel: (202) 289-7319 Fax: (202) 898-0059 Comelfar Flam via Notice of Hectonic Filing generated by 10 To: Subject: Attachments: MPHamleaolmm Monday. June 27, 2011 7:02 PM Cunningham, Katie NRA's Motion to Intervene 8t Memorandum of Law Case Dobum?ntss Entered on FLSD Dodtet06127l2011 Page 1 of19 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Cake NO. DR. BERND et a1. Plnimi?'s, V. RICK inhiso?cial capacity as Governor ofthe State ofFlorida, eta]. Dafehdants, and NATIONAL RIFLE ASSOCIATION, Proposed hmeIVcnor. PROPOSED INTERVENOR NATIONAL RIFLE MOTION TO .m I 04.1.0 0' Case Document 36 Entered on FLSD Docket 06(27/2011 Page 2 of 19 NT Em TABLE OF AUTHORITIES . 'ii STATEMENTWW . 1 . 2 1.. mm Is ENTITLED Immvm As or meat 2 A. mm?smdonimmely 2 B. 'l'heNRA Has when, Substantial and Legally Pmtecmble Interest in this human? 4 C. The Disposition ofthis CascMay Impairthc NRA's Ability to Protect Its 6 D. The Intent-a Are Not Adequately Repnsented by the: Existing Parties 7 II. FOR hammer: 10 CONCLUSION . 1] Case Document 36 Entered on FLSD Docket 06/27/2011 Page 3 of 19 AU TI 9.11m tans Chile: v. Mrnburgh,865 F.2d 1197(11111 Cir. 1989) .2. 3,4, 5,6 Clark mm County, 168 F.3d 458 (11111 Cir. 1999) 7, s, 9 Diamond v. Charles, 476 U.S. $4 (1986) 6 Did?cb'on v. United States Dep?t of Interior, 982 F.2d 1332 (9th Cir. 1992) 6 Donaldson v. United States, 400 U.S. 517 (1971) FederaISav. Loon Ins. Cotp. v. Falls ClmeSpeciaI 1211:111thqu 983 F2d 211 (11111 Cir. 1993) 2 Georgia v. United Sate: Anny Com: ofEngbIeers, 302 F. 3d 1242 (11th Cir. 2002) 4, 10 Howard v. Mom, 182 956 (11111 Cir. 1986) 10 Ham! v. Washington ?ate'Apple Advertising Commission, 432 U.S. 333 (1977) 4, 5 In re Lease Oil Antitrust Litig, 570' F.3d 244 (5111 Cir. 2009).. .2 WV. Babbitt, 85F.3d 1295 (8111Cir. 1996) 9 Mock v. Metropolitan Dade County. Florida, 985 F.2d 1471 (11111 Cir. 1993), overruled on other grounds by Dillard 11.010101: County Commission, 495 F.3d 1324 New York Public Interest?aearch Grow. Inc. v. Regents of Univermy of State of N. K, . 516 F.2d 350 (2d Cir. 4, 5 Planned Parenthood of Manta, Inc. v. Citizensfor Community Action. 558 F.2d 861 (8th Cir. 1977) 5 Schulz v. Williams, 44 F.3d 48 '(2d Cir. 1994) 6 Sierra Club v. Glickman; 82 F.3d 106 (5thCir. 1996) 4 Southwest Biological Diversity Berg, 268 3d 810 (9th Cir. 2001) 2 Stallworth v. Monsanto Co. 558 F.2d 257 (5111 Cir. 1977) 3 Ta? v. Pontarellt, 100 F.R.D. 19 (D.R.I. 1983) 5 Trbovich v. UnitedMIne Workers, 404 U.S. 528 (1972) . . ?7 ii Case Document 36 Entered on FLSD Docket 06/27/2011 Page 4 of 19 Turn Key Gaming, Inc. v. Ogiala Sioux 20117:, 164 F.3d 1080 (81h Cir. 1999) .2 Utah Ass?n of Counties v. Cifhton, 255 F.3d 1246 (10th Cir. 2001) .. 9 Umhmfor Better ?mp. v. United States Depmmem of Wrintion, 29S (101116322002) 4 WiIdEar?I Gum-diam v. United States Fem! Sun, 573 F.3d 992 (10th Cir. 2009) 9 World: v. Depa'iment of Health Rehabilitative Senrices, State of Fibrida, 929 F26 591 (1101 Cir. 1991) 4 - Fm). R. CW. P. 24.. 2,10 FLA. STAT. ?2042.. 8, 9 FLA. STAT. 20.43 8, 9 FLA. STAT. 790.338 .. 1, 5, 6 911m 6 JAMES W. Moon ETAL, Moon?s FEDERAL Manna (3d. ed. 2004) 2 7C C. Wmm, A. MILLER, M. KANE, FEDERAL Pawnee PROCEDURE 1908 (2d ed. 1986) 5 Case Document 36 Entered on FLSD Docket 06/27l2011 Page 5 of 19 Pursuant to Federal Rule of Civil Procedure 24, the National Ri?e Association (NRA) movesthisCOurtfor anordmallowingitmintervene intilis case. AProposed Orderisattached as Exhibit A. STATEMENT The NRA is America?s foremost and oldest defender of Second Amendment rights, and it was also a foremost supporter of the Florida hill entitled ?An act relating to the privacy of ?rearms owners" at issue in this litigation. See Declaration of Marion P. Hammer (Hammer Decl.)1 5, Exit. 8. A copy of that bill, hereinafter referred to as the Firearm Owners' Privacy Law, is reproduced at DB 20-1. On June 2, 201 1, the Florida Governor ngned that bill into law. The Firearm Om? Privacy Law bene?ts NRA members by. among other things, stablishing thatpotiemts may choose not to answer intrusive questions about gun ownership. discouraging health care practitioners and facilities from asking-such questions in the ?rst place, and protecting patients from discrimination simply because they choose to exercise their constitutional right to keep and bear arms. See FLA. STAT. 790.3380) Plaintl?'s in this action. individual doctms and professional organizations, ?led their initial complaint on June 6, 2011. See DE i. On June 24, they ?led an amended complaint, naming as in their o?icial capitation, Florida?s Surgeon General'and Seam of Health Care Administration and members of the State?s Board of Medicine (collectively. ?State Defendants?). See DE 15. Plaintiffs claim that the Firm Ownoto' Privacy Low violates the . First and Fourteenth Amendments to the United States Constitution. They seek adeclaration to that effect and preliminaiy and permanent injunctive relief prohibiting State Defendants from enforcing the law. Case Document 36 Entered on FLSD Docket 06(27/2011 Page 8 of 19 TheNRAseeksto intervenetoprotectitsmembets? interests intheFirenrm Owners? Ptivacy law against this spurious legal attack. For the reasons explained below, the NRA is entitled to intervene as of right under Rule 24(a) and, in the altemztive. meets the requirements for permissive intei'vention undu Rule 240)). ARGUMENT I. Tm: NRA ls Emmn As orRlGu'r Under Federal Rule of Civil Procedure a district court ?mint allow {a party] to intervene? if?(l) his application to intervene is timely: (2) he has an interest relating to the pmpeuty or transaction which is the subject of the action; (3) he is so situated that disposition of theactlon, asapmcticalmatter. may impede or impsirhis abilityto protectthatinterest; and?) his interest is represented inadequately by the existing patties to the suit.? Chile: v. Thornburgh, 865 ma 1 197, 1213 (11th Cir. 1989). These remiitements are construed liberally, and ?[alny doubt concerning the propriety ofnllowing innervation should be resolved in favor ofthe [imposed intervenors." Federal Sav. Loan Ins. Corp. v. Falls Chase Special Taxing Dist, 983 F.2d 211, 216 (11th Cir. 1993); see also 6 JAMES W. Moons BTAL, Moon?s FEDERAL (3d. ed. 2004); In re Lease Otl Litig, 570 F.3d 244, 248 (5111 Cir. 2009); Southwest Ctr. for Biological Diverkigt v. Berg, 268 F.3d 810, 818 (9th Cir. 2001); Turn Key Gaming, Inc v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th Cir. 1999). Because the NRA meets these requirements, it is entitled to intervene. A. The Motion is Timely . Four factors guide this Comt?s analysis of the timeliness of the intervention motion: (1) ?[tJhe length of time during which the would-be interltenor semally knew or lemonably should have known of his interest in the case before he petitiomd for leave to Case Document 36 Entered on FLSD Docket 06/27/2011 Page 7 of 19 intervwe?; ?[tlhe extent oftho prejudice that the existing parties to the litigation may suffer a result ofthe would-he intervenor's failure to apply for intervention as soon as he oomlly knew or reasonably should have known of his interest in the ease?; (3) ?[tIhe extent of the prejudice that the would-be intewenor may suffer if his pe?tion for leave to intervene is denied"; and (4) ?[t]he existenee of unusual circumstances militnting either for or against a determination that the application is timely." Stalhvorth v. Monsanto Co.. 558 F.2d 257. 264-66 (5th Cir. 19m. a timely fashion. A: an initial matter, We this suit was only ?led on June 6, 2011,3113: three weeks have passed since the earliest date the NRA possibly could have known about its interest inthis litigation. but it has ?discharged [its] duty to act quickly.? Id at 267 (?By ?ling their petition [to intervene] case, the appellants dischargedtheir duty to act quickly!) Furthennore, given the embryonic stage ofthis lawsuit we cannot fathom any prejudice the existing parties will face by failure ofthe NRA to not even faster than it did. See Chiles, 865 F26 at 1213 (holding that ?[nlone of the parties already in the lawsuit could have been prejudiced" by timing of intervention motion ??led only seven months she: [the plaintiff] ?led his original complaint, three mantis alter the [defendant] ?led its motion to dismiss. and before any discovery had begun?). Denying the NRA's motion to intervene, on the other hand, would'deny the NRA the ability to represent the substantial interests its members have at stake in this litigation. We are not aware of any ?unusual that would oatmsel against a ?nding of timeliness here. Moreover, undersigned counsel for the NRA contacted counsel for plaintiffs on Case Document 36 Entered on FLSD Docket Page 8 of 19 June17and infonnedhimthatNRA intendedto intervene. And theNRA hasmoved to inter-vale within one business day of the ?ling of the amended complaint. B. The NRA Has a Direct,,Substant al end Legally Protectable Interest in this Litigation party is entitled to intervention as a matter ofright party's interest in the subject matter of the litigation is direct, substantial and legally protectable.? Georgia v. United States Army Corps of Engineers, 302 F.3d 1242. 1249 (11th Cir. 2002); see also Donaldson v. umms, 400 vs. 517, 531 (1971) (Rule 24(a)(2) requires a ?agni?cantly protectable interest"). Courts? ?inquiry on dis issue is a flexible one," Chiles, 865 F26 at 1213-14 (quotation marks omitted). with the interest test sewing ?primarily [as] guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with e?ciency and due process." Worlds v. Department of Health c? Rehabilitative Services, State of Florida, 929 F.2d 591, 594 (11th Cir. 1991). Because the subject matter of this case directly and substantially implicate: the legally protectable imerestsofNRA members,theNRAhas winter-est su?icienttoentitleitto intervene in this case. As an initial matter. it is well-atablished that membership organizations such as the NRA may represent their members' interests in federal litigation, see Hunt v. Washington Suite Apple Advertising Commission, 432 US. 333. 343 (1977), and federal courts have thus ?'equently allowed membership organizations to intervene to defend their rue-bers? interests, see, Utahns?or Better dep. v. United States Deparaneni of ?ansporta?on, 295 F.3d 1111,? 1116 (10th Cir. 2002); Sierra Club v. Glickman, 82 F.3d 106, 109 (5th Cir. 1996); New York Public Interest Research Group, Inc. v. Regents of University of State qf N. 516 F.2d 350, 352 (24 Cir. 1975). Case Document 36 Entered on FLSD Docket 0612712011 Page 9 of 19 The NRA is particularly well-suitedto represent?its members? interests in this case. Not only is the NRA America's foremost and oldest defender of Second'Amendment rights, but the NRA was also a foremost supporter ofthe Firearm Owners? Privacy Law. See Hammer Dec]. 1 5; of Hunt, 432 U.S. at 343 (associational standing requires that ?the interests [an organization] seeks to protect are germane to the organization?s pinpose?). And the defense of the Firearm Owr'ters' Privacy Law against plaintiffs? challenge for declaratory and injunctive relief will not require participation of individual NRA members in away that would preclude the NRA representing its mbets' interests. Cf. id. the NRA has members with a direct. substantial, and legally protectable interest intbe Subjectmatter ofthis litigation The Firearm Owners' Privacy members from intranive, irrelevant questioning by them care practitioners and from discrimination on account of their exercise of Second Amendment rights. NRA numbers have a direct and substantial interest in defending these legal protections from constitutional attack." Indeed, NRA members in Florida have experienced inlrusive?ques?oning about gun (Meet-ship and possession when visiting the doctor's o?lce. See Hammer Dec]. 1 6. Firearm Owners? Privacy Law establishes that patients do not have to answer such questions, and See, 42.3.. New York Public Interest Research Group, 516 F.2d at 352 (holding that pharmacists who bene?ted from a regulation Ind interest suf?cient to support intervention as of right to defend it); Planned Parenthood Inc v. C'ittz?nsfor Community Action, 558 F2d 861, 869-70 (8th Cir. 1977) (holding that organization and individuals interested' ensuring that abortion clinics did not negatively impact property values had an interest suf?cient to support interventionas ofright to defend a local ordinance impodng amoratoriurn on building abortion clinics); Ta? v. Pontarelli, 100 P.R.D. 19, 2041 (D.R.I. 1983) (holding that parents of children who attended religiously af?liated schools and allegedly bene?ted from federal education program had an interest suf?cient to support inter-veri?er: as ofrightto defend that program from First Amendment attack); see also Chiles, 865 F.2d at 1214 ?in cases challenging various statutory schemes as monstitntional or as improperly interpreted and applied, ?ue some have recognized that the interests ofthOse who are governed by thou schemes are suf?cient to support intervention? (quoting 70 C. WRIGHT, A. MILLER. M. KANE, FEDERAL PRACTICE PROCEDURE 1908, at 285 (2d ed. 1986)). 5 Case Document 36 Entered on FLSD Docket 06/27/2011 Page 10 of 19 that health care practitioners and facilities cannot discriminate against than for exercising their constitutional right to own and possess ?rearms. FLA. s'm. It also discourages doctors from asking such intrusive questions in the ?rst plate Id. 790.3380). Were the Law invalidated, NRA members would lone the bene?t of these legal protections. Because NRA members are direct bene?ciaries of the Firearm Owners' Privacy Law (and thus would be directly banned ifit wereinvalidated), they have ?a direct stake in the omcorne? of this case suf?cient to establish their standing to defend it. Diamond Charles, 476 us. 54, 62 (1986) (quotation marks omitted); otso id at as n.l7 (a state legislature ?has the power to create new interests, the invasion ofwhich nrsy oonfer standing?)? While it is not necessary this the NRA establish Article 111 in order to intervene, see Chllos, 865 F.2d at 1213 paltyseeltingto aslongastheteexistsa justiciable case and controversy between the parties already in the lawsuit"), having done so it follows a?mlorl that the NRA has an interest su?icient to support intervention, see Meek v. . Metropolilar Dorie County, Florida, 935 F.2d 1471, 1480 (llth Cir. 1993), overruled on other mutt by Dillard. v. Chilton County Commission, 495 F.3d 1324 (11th Cir. 2007) movant who shows standing is deemed to have a suf?ciently substantial interest to intervene?). C. The Disposition of this Cm May lmpair the NRA's Ability to Protect Its Interest ?The nature crate interest and the e?'ect that the disposition ofthe lawsuit will have on their ability to protect that interest are closely related issues.? Chlles, 865 F.2d at 1214. Indeed, having established that the NRA has a direct, substantial, and legally interest 1 See. Schulz v. Williams, 44? F.3d 48, 52-53 (2d Cir. 1994) (holding that representative of political party that bene?ted ?-om State election law had standingto defend the law); Dltb'icb-an v. United States Dept. qfl'nterl'or, 982 F.2d 1332, 1339-40 (9th Cir. 1992) (holding that enviromnentnl organizations We members allegedly bene?ted from federal regulation protecting sea otters had standing to defend the regulation). 6 Case Document 36 Entered on FLSD Docket 06/27/2011 Page 11 of 19 in this litigation, there can be little doubt that the ?disposition of the when, as a practical matter, may impede or impair [its] ability to protect that interest.? Id. at 1213. Should the plainti??s prevail in obtaining an injunction prohibiting enforcement of the Firearm) Owners? Privacy 113w, the members will lose the bene?t oftiutt law?s protection and once again be placed in a position in Which health care providers may act with impunity in intermgetingthem about their ?rearm ownership and discriminating against them on account of their exercise of Second Amendment rights. I). The Intercom Are Not Adequately Represented by the Existing Par-tier Courts in the Eleventh Circuit apply a ?weak? presumption of adequate representation "when an existing party seeks the same objective: as the would-be intervener?." Clerk v. Putnam County, 168 F.3d 453, 461 (11th Cir. 1999). This preemption ?merely imposes upon the proposed intel'vener? thebut'dcn ofcnmingforward with some evidence to the contrary.? Id. Once thisminimatbmdenis satis?ed. ?the representation exists? if, among other things, ?the representative does not have or represent an interest adverse" to the proposed intervmor. Id. Showing inadequate representation, however, ?is not di?ieult?: ?The ?requirement of the Rule is satis?ed if the applicant shows that representation ofhisinterest?My should be treated as tninimal.? id. (quoting Dbovich v. United Aline Workers, 404 U.S. $28, 533 11.10 (1972)). Even if the State Defendants slate the NRA's ?ultimate objective? of defending the Firearm Owners? Privacy Law from constitutional attack, it is nevertheless the case that the State Defendants represent interests other than and potentially aim to the interest in protecting the rights of its members. Public o?icials charged with regulating the provision of Case 1:11-cv-22026vMGC Document 36 Entered on FLSD Docket 06/27/2011 Page 12 of 19 health care in the State ofFlorids must take into account the broad public intesest, including the interests of all patients and physicians, not just the private interests of its members the NRA seeks to represent. Defendant Painter; for example. is sued in his o?icial capacity as Florida's Surgeon (lateral. By operation of law, the Stan: Surgeon Omen] not only is required to ?focus an building collabomtive paralerships with health care practitioners.? but is also required to be a licensed physician. mt. STAT. 20.4mm)? . Defendant Dudek, for another example. is sued in her of?cial capacity as Florida?s Secretary of Health Care Administration. Because the department she heads is ?thechief health policy and planning entity for the state,? FLA. STAT. the interests she represents in discharging her duties plainly extend beyond the interests the NRA seeks to represent here. The StateDefmdants? de?ne in this case surely (and charged with represenn'ng. Indeed, even apart from any connection they have to the health can: sum, as public of?cials the State Defendants must be attuned to public Opinion (and public ?nances) to a degree the NRA need not. This too could play stole in the State Defendants? defense, particularly in light of the controversial nature ofthe subject matter of this case. The Eleventh Circuit has cleaned similar concerns in ?nding that proposed intervenors satis?ed the requirement to show inadequate representation by public o?ieials. In Clark v. Putnam Carney, 168 F.3d 458 (l Cir. 1999), white voters sued Pinn- County, Georgia and its commissionezs to challenge the constitutionality of the county's voting plan under the Equal Protection Clause ci?the Amendment. The district court denied six black voters? motion to intervene to-dcfeud that plan because it held that their interests wen: adequately 3 Cf Plaintiffs' PI Motion at 11.! (DE 16 at 2 n.l) (?Many ofthe defendants are physicians who, in their individual capacities, are members of the plainti?? organizations and agree with the Plainti?'s? positions in this case") Case Document 36 Entered on FLSD Docket 06/27/2011 Page 13 of 19 represented by the county commissioners. Id. at 460.. The black voters appealed. and the Eleventh Circuit reversed, holding that therewas ?a suf?cient divergence ofinterest between the six black voters and the comny to entitle the six black voters to inter-veto.? 1d. at 461. In support oftltis holding, the Court explainedthat the county commissioners claimed to ?represent the lam-eats ofall Patriam'Cormty citizens.? including its blank and white v'oters, and that it could not ?adequately represent the proposed defendants while simultaneously representing the plainti?'s? interests.? Id. The oommiasionera? ?duty to consider the expense of defending the [voting] plan out of county coffers" added ?another component? to the distinction between the interests of the commissioners and the proposed intervenora. 1d at 461-62 thermore, an elected of?cials, the county commissioners had ?an interest in"runaining politically popular and e?hctive leaders? that could make them inadequate representatives of the proposed intervenors? interests even though that they [would] defend the voting plan? at issue in the case. Id. at 4524 Other courts have likewise found public o?icials charged with representing broad and potentially competing interests inadequate representatives ofthe narrower interests sought to be promoted by a proposed intervettor.? This reasoning also applies to appointed of?cials, particularly those like Florida?s Surgeon General and Secretary of Health Care Administration that serve at the pleasure ofa democratically elected Governor. See FLA. STAT. 20.420); 5 See, Gmrdiam v. United States Forest Son, 573 F.3d 992, 996?97 (10th Cir. 2009) (holding that a proposed intervenor?s ?showing [of inadequate representation] is easily made when the party upon which the intervenor must rely is the govermnent,? because litigating on behalfof the general public, the government is obligated to consider a broad spectrum of views, many of which may con?ict with the particular interest of the would-be intervenor?) (quotation marks omitted); Ural: Au?n of Counties v. 255 F.3d 1246! 1255 (10th Cir. 2001) (?We have here also the familiar situation in which the governmental agency is seeking to protect not only the inherent ofthe public but also the private interest of the petitioners in intervention, amakwhich is on its face impossible. The cases thatthia kind ofa con?ict satis?es the minimal burden of showing inadequacy of representation?); Maurozfv. Babbitt, 85 F.3d 1295, 1303-04 (8th Cir. 1996) (acknowledging that ?the Government cannot always adequately represent con?icting interests at the me time." and holding that proposed 9 Case Document 36 Entered on FLSD Docket 06/27/2011 Page 14 of 19 In sum, became the State Defendants represent broad public interests in Florida?s health care system, including the interests of the physicians that are the plaintim in this case, the State Defendants litigation. 11. Tue NRA Mama rat: quumma'ms ron Asthe foregoingdemanstrates, theNRA isentitledm intervene inthis litlge?onasa matterofright. Court theNRA asks inthe alternative to be granted permissive intervention pmsuant to Federal Rule of Civil Procedme ?Upon timely application, . [p]enniasive intervention is appropriate where a intervention will not unduly prejudice or delay the adjudication of the rights of the original parties.? [failed States Army Corps of Engineers, 302 F.3d at 1249-50. to timeliness, the same analysis is used for evaluating an application for intervention as ofright and an application for permissive intervention. See Howard v. MeLucas. 782 F.2d 956, 959(1 1th Cir. 1986). As we have already explained, this analysis demonstrates that the NRA's motion to Intervene is timely. It is also plain that the defense and the ?main action"present common legal questions, Plainti??s' claims and the defense both involve the constimtionality ot? the Firearm Ownera? Privacy Law under the Federal Constimtion: Plainti?'s melt a declaration that the law violates the Federal Constitution. and the NRA contends the the law complies with the. Federal Constitution. See Answer of National Ri?e Association to Plainti??s' First Amended inteweaors had established inadequate representation because ?the Government?s interest in promoting tecreational activity and tourism in [addition to conservation in Voyageurs National] Park .. may be adverse to the [prepoeed intervenor?s] conservation interests?). 10 Case Document 36 Entered on FLSD Docket 06/27/2011 Page 15 of 19 Complaint, Em C. These urginnems present hiextricably intertwined and completely overlapping questions of law. Finally. intervention by the NRA will not unduly delay orprejudice the disposition ofthis litigation. Indeed, becausethe NRA believes thatplain?ffs' claims fail as amntter oflaw, it anticipates that its defense will be largely if not wholly legal in nature This defeme ehould not add signi?cant time or complexity to'mis case. apprOpriate inthisease. Indeed, tthRA in the past has been granted minim intervmtion'to defend a Florida law against constitmional attack in a case in which a defendmt state of?cial (in that case, the Attorney Generalot'Florida) was vigorously defending the law. See Order Granting Leave to Intervene - National Ri?e Association, DE 17, Florida Retail Federation Inc. v. Attorney General of Florida, Case No. (ND. Fla. June I. 2008). Even if this Court denies intervention as of right,_ it shouldthus intervention totheNRA toallowitto defend its me-bm? substantial inmate in this litigation. CONCLUSION Forthesereasons. this Court shouldgrantthe NRA?smotiontointervene. ll Case Document 36 Entemd on FLSD Docket 06/27/2011 Page 16 of 19 CERTIFICATE OF GOOD mam CONFERRED BUT UNABLE TO RESOLVE ISSUFB PRESENTED THE MOTION Pursuant to Local- Rnle I hereby certify that counsel for the movant has conferred with all parties or non-patties who may be affected by the relief sought in this motion in a good faith effort to twelve the issues but has been unable to resolve the issues completely. In particular, counsel for defendants stated that defendants will not oppose this motion.. Counsel" for plaintiff: stated that plaintiffs will oppose this motion, but that plaintiffs would not oppose the NRA ?ling an amicus briefas long so such amicus participation would not affect the timetable for consideration of any. matters before the Court. Gregory M. Cesarnno 12 Case Document 36 Entered on FLSD Docket 06/27/2011 Page 17 of 19 Dated: June 27, :2.011 13 Respect??ly submitted, mm GregoryM. Cesarano(Fla.BarNo. 217761) CARLTON FIELDS 100 S. E. Second Street, Suit: 4200 Miami, FL 33131 Tel: (305) 539-7417 Fax: (305) 530-0055 Charles J. Coopm? David H. Thompson? Wm Peter A. Patterson? COOPER KIRK PLLC 1523 New Hampshire Ave. NW Washington,- DC. 20036 Tel: (202) 220-9600 Fax: (202) 220-9601 Blian S. Koukomchos? bko iLc 28 Eagle Trace Mandeville, LA 70471 Tel: (985) 626-5052 ?Pra hac vice application pehding Coun?eljbr Proposed Intervenor NRA Case Document 36 Entered on FLSD Docket 0612712011 Page 18 of 19 I hereby certify that on June 27, 2011, I electronically ?led the foregoing docmnent with the Clerk ofthe COIlrt usingCM/ECF. I also certify. the foregoing domnnent is being served this day on all counsel of record identi?ed on the attached Service List in the manner speci?ed, either via transmission of Notice of Electronic ?ling generated by or in some other authorized manner for those counsel or parties who are not mthorized to receive electronically Notices of Elechmic Filing. GregoryMCeeamno l4 Caise Document 36 Entered on FLSD Docket 0612772011. Page 19 of 19 SERVICE LIST Chester?eld Smith, Jr. Edward M. Mullins Chief, State Programs Litigation Hal M. Lucas Jasbn Vail . ASTIGARRAGA DAVIS MULLINS Assistant Attorney General GROSSMAN, RA. . OFFICE OF THE ATTORNEY GENERAL 701 Briokell Avenue. 16th Floor SM?eePLOlJ?heCapitol MiamLFL33l3l Tallahassee, FL 32399 Counsel De?ndaw: via US. Mail Tel: (305)372-8282 Fax; (305) 37248202 Bruce S. Manheim, Jr. Douglas H. Hallward-D?emeier Augustine M. Ripe. Julia M. Lewis ROPES GRAY LLP 700 12th Street NW, Suite 900 Washington, D.C. 20005 Tel: (202) 508-4600 Fax: (202) 383?8332 Wm Jomxthan E. Lowy Daniel R. Vice BRADY CENTER TO PREVENT GUN VIOLENCE - Legal Action Project 1225 SlreetNW. Suite 1100 Washington, D.C. 20005 Tel: (202) 289-7319 "Fax: (202) 898-0059 Wm Counsel for Plaintf?fs via Notice of Electronic Filirg generated by CMECF 15 Case Document 36-1 Entered on FLSD Docket 06/27/2011 Page 1 of 2 Exhibit A C?se Document 38-1 Entered on FLSD Docket 06/27/2011 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. DR. BERND at Plainti??s. v. - RICK in his of?cial capacity as Governor of the State of Florida, ct al., Defendants, and NATIONAL RIFLE ASSOCIATION. Pmposed Manor. THIS MATTER is befom the Court on Proposed Intel-valor National Ri?e Association's Motion to Intel-m. This Cami, havingmviewed the Mo?onandbeing?illyadvised inthepmmises, hereby ORDERS AND ADJUDGES that: The Motion is GRANTED, and [mum National Ri?e Association?s Anew is deemed ?led as of this date. DONE AND ORDERED in Chambem', in Miami, Florida, this day of The Honorable Marcia G. Cooke United States District Judge Copies ?nished to: All Counsel of Record Case Document 36-2 Entered on FLSD Docket 06/27/2011 Page 1 014 Exhibit Case Document 36-2 Entered on FLSD Docket 06/27/2011 Page 2 of4 UNITED DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMIDMSION . Cu: N0. DR a a1. Plaintiffs, V. RICK SCOTT, inhiso?cinl capacity as Governorofthesmtcofl?loridu, Mal. Defendants, and NATIONAL RIFLE ASSOCIATION. Proposed Intervam. I, Marion P. Hmnmor, make the following declamion pursuant to 28 U.S.C. 1746: l. My?atemenuhereinm baud upon pea-90ml knowledge and experience. 2. Imodul?reddwt oftheNatioml Ri?eAssocinion (NRA) ?'om 1995-1998, an? amen?y me on the organization?s Board ofDirootom. 3. Founded in 1871, the NRA is America's forums: and oldest defender of Second Amendment rights. Among other things, the NRA promotes the safe and responsible possession Case Document 36-2 Entered on FLSD Docket 06l27/2011 Page 3 of 4 TheNRAisAmen-ica?sleading provider of 4. s. 6. duim??sthso?u'Mmewmm'u?mm 7. Mathemprao?tiommd?cilitiesmnot dinniminate againstpa?mtuimply beaunthey Case Document 36-2 Entered on FLSD Docket 0612772011 Page 4 of 4 medicalcare ornfety, orthenfetyofotm. Id 8. If??u: Fawn: me? Privacy Law is struck down, thoNRA's munben'will lose the I UNDER OF PERJURY THAT THE FOREGOING IS TRUE AND {if 2011 Case Document 36-3 Entered on FLSD Docket 062712011 Page 1 of 14 Exhibit Case Document 36-3 Entered on FLSD Docket 06/2712011 Page 2 of 14 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. ll-ZZWW-Cook?rmu?' DR. BERND cl al., Plainti?i, v. RICK SCOTT, in his o?cielcnpacity as Govemor of the State of Florida, et al., Defendants, and NATIONAL RIFLE ASSOCIATION. Intervenor. ANSWER OF INTERVENOR NATIONAL RIFLE ASSOCIATION T0 CO Intervenor the National Ri?e Association by and through counsel, answers Plainti??e? Complaint for Declaratory and hajunc?ve Reliefas follows: I. Intervene: admits that this action is brought under the First to the US. Constitution. Intervene: denies the remaining allegations in Paragraph 1. 2. Intervmm'lacksim?ormmion allegations in the ?rst 'and third sentences omeh 2. The second and fourth sentences oergroph 2 contain conclusions of law, which require no mponse. Intervenor denies any remaining factual allegations in Paragraph 2. Case Document 36-3 Entered o?n FLSD Docket 06/27/2011 Page 3 of 14 3. The allegations in Paragraph 3 consist of Plain??s? characterizations about the Florida law entitled ?An act relating to the privacy of ?reams owners." These allegationsarelcgal innauneandrequirenorespomc. (Plainti??srefertothe lawas the ?Physician Gag Law?; Intervenor haeina?er refers to it as the ?Firearm Owners? Privacy Law?) Intervenor denies any factual allegations in ngaph 3. 4. The allegations in '4 consist of Plainti??s' chamctetizations of the Firearm Ownem' Privacy Law. These allegations are legal in um and require no respome. Intervenor lacks infomation su?icient to form a belief about the truth of any factual allegations in Paragraph 4. S. The ?rst sentence of Paragraph 5 contains conclusions of law, which require no response. Intervenor denies that the Firearm Onmers? Privacy Law violates the First and Fourteen?i Antendnients to the U.s.?Cons1imtiort Intervenor admits that Plainti??s seek declaratory and injtmetiye relief; but denies that We are entitled to such relief. Interveuor lacks information suf?cient to ?orm a belief about the truth of the remaining factual allegations in Paragraph 5. 6. Intervene: admits that bring this action to 42 0.8.0. 1983 as alleged in Paragraph 6, but denies that Plainti?'s have been deprived of any right secured by the Constitution of the United States. 7. Interveuor admits that this Court has subject matter jurisdiction over thus action under 28 U.S.C. 1331. httervam admits that Plaintiffs seek reli?fpursuant to 28 U.S.C. 2291 and 2202, but denies that Plaintiffs are entitled to any such relief. 8. Intervenor lacks information sufficient to form a belief about the truth of the allegations in Paragraph 8. Case Document 36-3 Entered on FLSD Docket 06/27/2011 Page 4 of 14 9. Intel-woo: denies that the Firearm Ownets' Privacy Law constitutes an immediate in?'lngement of the ?ee speech rights of Plaintiffs, their members, and their patients. The remaining allegations in Paragraph 9 consist of conclusions of law, which require no response. The allegations in Paragraph 10 consist of conclusions of law, Which require no mswer. ll. Intervcnor lacks information su?icient to form a beliefam the truth ofthe allegations in Paragraph ll. 12. Intm-venor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 1.2. 13. Intetvenor lacks information sumcient to form a belief about the truth of the allegations in Paragraph 13. 14. human): lacks information au?ioient to form a belief about the truth ofthe . allegations in Paragraph 14. 15. hatervenor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 15. 16. Intervenor lacks information su?icient to form a belief about the truth of the allegations in Pang-apt; 16. 17. Inwrvenor lacks infomtion suf?cient to fonn a belief about the truth of the allegations in Paragraph 17. .18. Intervene:- lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 18. Case DoCument 36-3 Entered on FLSD Docket 06/27/2011 19. Intervonor lacks information su?icient to form a belief about the truth of the allegations in Paragraph 19. 20. Intervene: admits that Defendant Frank Fame: is sued in his official capacity as Surgeon General of Florida. admits that, under Florida law. Mr. Farmer?s respomibilitiea include heading the Florida Department of Health. The remaining assertions in Paragraph 20 consist of Plaintiffs? character-iutions of'Mr. Farmer?s and the Department of Health?s responsibilities and powers under Florida law. These legal assertions require no response. 21. Intervenor admits that Defendant Elizabeth Dudelr is sued in her o?icial oftheStmofFlo?daandthat, under Florida law, Ms. Dude]: is the head of the Agency for Health Care Administration. The remaining assertions in Paragraph 21 consist of characterizations of Ms. Dudek's and the Agency of Health Care Administration?s responsibilities and powers under Florida law. Thwe legal asses-dens require?no response. 22. capacity as Chair and Member of the Board of Medicine (?Board") of the Florida Depamnmt of Health. The remaining medians in Paragraph 22 consist of Plainti??s' characterizations of Mr. Thomaa?s and the Board?s responsibilities and powers larder Florida law. These legal assertions require no response. 23. Intervenor admits the allegations in Paragraph 23. 24. Intervenor admits the allegations in Paragraph 24. 25. Intervenor admits?the allegations in Paragraph 25.- 35! Intervenor admits the allegations in Paragraph 26. Page 5 of 14 Case Document 36-3 Entered on FLSD Docket 06/27/2011 Page 6 of 14 27. Intervenor admits the allegations in Paragraph 27. 28. Intervenor admits the allegations in Paragraph 28. 29. Intervenor admit: the allegations in Paragraph 29. so. Intervenor admits the allega?onsiangraphSO. 31. 32. Intervene: admitxtheallegationsin Paragraph 32 33. Intervenor admits the allegations in Paragraph 33. 34. 35. Intervene: admits the allegations in Paragraph 35. 36. Intervenor admits the allegations in Paragraph?36. 37. The allegation in the ?nal sentence of Paragraph 37 is vague, ambiguous, and unsupported and therefore Imervenor cannot agree to its truth. Intervenor lacks information suf?cient to form a beliefabout the truth ofthe remaining allegations in Paragraph 37. 38. Intervenor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 38. 39. The allegation in the second sentence of Paragraph 39 is vague and ambiguous, and therefore cannot agree to its truth. Intervenor lacks information au?lcient to form a belief about the truth of the remaining allegations in Paragraph 39. 4o. Intervene:- lacks information su?ieient to form a belief about the mm. of the allegations in Paragraph 40. 41. Intervenor leeks information su?icient to form a belief about the truth of the allegations in Paragraph 41. Case Document 36-3 Entered on FLSD Docket 06l27/2011 Page 7 of 14 42. lntervenor lacks information su?eient to fonn a belief about the truth of the allegations in Paragraph 42. 43. Intervenor denies the allegations in me ?rst two sentences of Paragraph 43. Intervcnor lacks information su?ioient to form a belief about the truth of the remaining allegations in Paragraph 43. 44. Intervenor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 44. 4S. Intervene: lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 45. - 46. Intervenor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 46. 47. Intervenor lacks infatuation su?icient to form a belief about the truth of the allegations in Paragraph 47. 48. Intervenor lacks information suf?cient to form a belief about the truth of the allegations in Patagmph 48. 49. Intervenor lacks in?mnation su?ieient to form a belief about the truth of the all egationa in Paragraph 49. . 50. Intervenor lacks information sul?cient to form a belief about the truth of the allegations in Paragraph 50. Intervene: lacks information su??lcient to form a belief about the truth of the allegations in Paragraph 51. - 52. Intervenor lacks information m?icient to form a belief about me truth of the allegations in Paragraph 52. Case Document 3&3 Entered on FLSD Docket 06/27/2011 Page a of 14 53. Intervenor denies the allegations in the. ?nal sentence of Paragraph 53. Intervenor lacks information su??leient to form a belief about the truth of the remaining allegations in Paragraph 53. Intervenorlecks information su?ieienttofonn abeliefaboutthetruthofthe allegations in Paragraph 54. 55. Intervene: lacks infonmtion a?ciont to form a beli?f about the truth of the allegations contained in the ?rst senteme of ngraphSS. The remainder of Paragraph 55 contains conclusions of law, which require no answer. Intervene: lacks information suf?cient to form a belief about the truth of any remaining factual allegation: in Paragraph 55. 56. Paragraph 56 Containslegal conclusions that require no response. Intervenor 56?1atthelawatismeisentitled, inpart,?Anaetre1ating to the privacy of ?rearm owners.? Intervener denies any remaining fecmal allegations in Paragraph 56. Paragraph 57 consists of legal conclusions about the law that require no response. Intervenor denies any factual allegations in Paragraph 57. . 58. Intervene: admits that Paragraph 58 aocmately quota language included in provision: of the Firearm Ownerc? Privacy Law, but denies that Paragraph 58 quotes those provisions in .full. Plaintiffx? assertions about the Firearm Owners'_ Privacy Law in Paragraph 58 are legal in nature and require no response. 59. Intervenor admits that Paragraph 59 accmately quotes (with one alteration) language included in a provision ofthe Firearm Owners' Privacy Law, but denies that Case Document 36-3 Entered on FLSD Docket 06127/2011 Page 9 of 14 Paragraph 59 quotes that provision in ?rll. Plaintif?z? assertions about the Firearm Owners? PrivacyLawinParagraph 59am1egal innature andrequirenoreSponae. 60. Intervcnor admits Paragraph 60 accurately quotes language in provisions of the Firearm Owners? Privacy Law, but denies that Paragraph 60 quotes that provision in full. Plaintiffs? am about the Firearm Owners? Privacy Law in Paragraph 61.- Intervenor admits Paragraph 61 accm'ately quotes (With one alteration) language included in provisions of the Firearm Owners? Privacy Law, but denies that Paragraph 6l'quotes that provision in full. Plaintiffs? assertions about the Firearm Owners? Privacy LawlnParagr-aph?l arelegal innanneandrequireno response. Intervenordeniee the remaining allegations in Paragraph 61. 62. Intervenor admits Paragraph 62 accurately quotes (with one alteration) language included in provisions of the Firearm Owners? Privacy Law, but denies that Paragraph 62 quotes those provisions in ?rll. Plaintiffs? assertions about the Firearm Owners? Privacy Law in Paragraph .62 are legal in nature and require no response. httervenor denies the remaining allegations in Paragraph 62. 63. Plaintiffs" assertions about the Firearm Owners? Privacy Law in Paragraph 63 are legal in nature and require no response. lntervenor denies any factual allegations in Paragraph 63. 64. Plainti?'s? amertions about the Firearm Ownera? Privacy Law in Paragraph 64 are legal in nature and require no response. Intervemr denies any factual allegations in Paragraph 64. Case Document 3643 ?ltered on FLSD Docket 06/27/2011 Page 10 of 1 65. Inter-vermi- admits Paragraph 65 8001113me quotes (with one alteration) language included in provisions of the Firearm Owners? Privacy Law, but denies. that Paragraph as quotes those provisions in full. Plainti?iz' assertions about the Fireann Ownm?PrivaeyLawiangr-aph Intavenor denies any remaining factual allegations in Paragraph 65. 66. Intervcnor admits ?m the quoted language in Paragraph 66 appears in substantially similar form in a provision of the Firearm Ownerej? Privacy law. but denies that Paragraph 66 quotes .that provision in full. Plainti??s? assem'ons about the Firearm Owners? Privacy Law in Paragraph 66 are legal in nature and require no response. Intervenor denies any remaining factual allegations in Paragraph 66. 67. Plainti?s? assertions about the rim Owners? Privacy Law in Paragraph 67 are legal innamm and require no response. Intervenor lacks information suf?cient to form a belief about the ofthe factual allegations in Paragraph 67. 68. Plainti??a? assertions about the Firearm Owners? Privacy Law in Paragraph 68 are legal in name and require no resnonse. Intervemr denies any'factual allegations in. Paragraph 68. 69. Intervemt lacks information suf?cient to farm a belief about the truth of the allegations in Paragraph 69. 70. Plaintiffs? assertions about the Firearm Owners? Privacy Law in Paragraph 70 mlegal innann?eandrequirenorespome. Paragraph 70. Case Document 36-3 E?lntered on FLSD Docket 06/27/2011 Page 11 of 4 . 71. Intervenor denies the allegntions in the ?rst, third. and fourth sentences of Paragraph 71. Intervenor lacks information suf?cient to form a belief about the truth of the remaining allegations in Paragraph 72. Intervm denies that the Firearm Ownem? Privacy Law is ?vague, oven-broad, and ambiguous.? Intervene: lacks infannan?on suf?cient to form a beliefabout the truth of?ie remninhg allegations in Paragraph 72. ?73. Intervene: lacks information su?icient to tom a belief about the of the allegations in Paragraph 73. 74. Intervene: leeks information su?icient to form a belief about the truth of the allegations in Paramh 74. 75. Intervenor lacks infonnation su?icient to form a belief about the truth of the allegations in Paragraph 75. 76. Intervene: lacks inforr'mtion su?icient to form a belief about the truth ofthe allega?tms in 76. T7. Intervenor leeks information su?icient to form a belief about the truth of the allegations in Panel-spit 77. 78. Intervene: lacks infatuation a?cient to fonn a belief about the truth of the allegations in Paragraph 78. 79. Intervenor lacks information suf?cient to tom a belief about the truth of the allegations in Pdragraph ?79. 80. Intervene: lacks information sut?cient to fonn a belief about the truth of the allegations in Paragraph 80. 10 Case Document 36-3 E1ntered on FLSD Docket 06/27/2011 Page 12 of 4 8] . Intervenor lacks information suf?cient to form a belief about me of the allegations in Paragraph 81. 82. Intermor lacks information su?icient to farm a belief about the truth of the allegations in Paragraph 82. 83. lacks information suf?cient to form a belief about the umh om allegations in Paragraph 83. 84. Intervmor lack: information su?ct-t to a belief about the truth of the allegations in Paragraph 84. 85. Intervene: lacks information su?icient to form a belief about the truth of the allegations in Paragraph 85. 86. Intervenor lacks information suf?cient to form a belief about the truth of the allegations in Paragraph 86. 87. Intervenor laoks information suf?cient to form a belief about the truth of the allegations in Paragraph 87. 88. Intervenor admits that Governor Soon signed the Firearm Owners? Privacy Law into law on 2, 2011.- .Intuvenor lacks suf?cient information to respond to the remaining allegation in Paragraph 88. 89. Intervcnor incommtes by. reference its responses to Paragraphs 1 through 88. 90. Admitted. Admitted. 92. Denied. l] Case Document 36-3 E1n4tered on FLSD Docket 0612712011 Page 13 of 93. Tothe extent that-a responu is required, Intervenor denies that Plaintiffs are entitled to the relief requested. 94. Intervenor denies each and every allegation not expressly admitted herein. Mummies Plainu??'s have failed to state a claim upon which relief can be granted. Wong: Plaintiffs lack patients and withrespectto provisions ofthe Firearm Owners? Privacy Lawthat do nothmm ?iem. WW Neither the provisions rim Defendants have deprived Plaintiffs of any right or privilege guaranteed by the United States Constitution. WHEREFORE, Intervamr respectfully requests that this Court dismiss Plainti??s? claims with prejudice, deny Plaintif?i' prayer for relief, order Plaintiffs to pay Intervenor?s costs and attomeyx? fees, and grant other relief deemed just and proper. Dated: June 27, 2011 Respect?tlly submitted, 3! - . Gregory M. Cesar-nae (Fla. Bar No. 217761) cesm'ano CARLTON FIELDS 100 8.3. Second Street, Suite 4200 Miami, FL 3313] Tel: (305) 539-7417 Fax: (305) 530-0055 12 Case Document 36-3 Eatered on FLSD Docket 08127/2011 Page 14 Of 13 Charles J. Cooper? David H. Thompson? rki Peta A. Paterson" COOPER KIRK PLLC 1523 New Hampshire Ave. NW Washington. DC. 20036 Tel: (202) 220-9500 Fax: (202) 220-9601 Brian S. Konkontchos? 28 Eagle Trace I Mandeville, LA 70471 Tel: (985) 626-5052 *Pro hac vice application pending Cowmlfor Iritervcnor NRA Sent: To:- Subject: attached MPHammerlGaolmm Thursday. February 14. 2013 5:47 AM Cunningham, Katie? Oral Arguments in the Docs a: Glocks case United sum Court oprpenll Eleventh Circuit 56 Ponyth Street. NW. AIIenta, Georgia 30303 John Ley In Replying Give Number Clerk and Nemee of Parties February 4, 2013 NOTICE TO COUNSEL OR PARTIES IN CASES LISTED BELOW: The following cases ere scheduled for oral augment during the week of MAY 20, 2013. IN MIAMI, FLORIDA. COURT WILL BE HELD OF THIS WEEK. COUNSEL WILL RECEIVE A FINAL CALENDAR APPROXIMATELY 6-8 WEEKS IN ADVANCE OF THE SESSION ASSIGNING A SPECIFIC DATE OF ORAL ARGUMENT. Hem note that an mammogram: deyfwerdargm mineral!? have qfeourt. See Germain?. If counsel has any insoluble scheduling con?icts which would with argument din-ins that week. please telephone this of?ce As SOON AS POSSIBLE at 404-335-6131 or 404-335-6141. JOYCE POPE Court Sessions Supervisor 11-11789 United States v. Lucia Peluflb (REVISED ARGUMENT DATE) 10-13325 United States v. Miehael J. ARGUMENT DATE) 12-14657 Ania-[jet Interne?bml, Inc. v. National Labor Relations Board, et :11. 12-13719 Steven Singlet v. Ber. Buy Co. of Minnesota, Inc. l2-l2093 United Sateen 12-1235 United States v. Robert Joseph Valerie, Appellant 12-12913 United States v. Diem-s Paeehioli, et 31.. Appelhme 11-11894 11-12173 Lawrence Meadows, Appellant v. American Airlines, Inc, et el. 11-15331 United Stetee v. Joel Enquemzi. ct (REVISED DATE) 12-14009 Dr. Bernd Wollechluger. et al. v. Governor of the State of Florida, at 12-10840 United State: v. Alexander McQueen, et el. From: MPHammerIanlmm Sent: Thumday, July 07, 2011 9:08 AM To: Cunningham Katie Subject: Plaintiffs Response to NRA's Amicus Motion Attachments: 52-plaintiffsamimsrasponsepdf Case Document 52 Entered on FLSD Docket 07l05l2011 Page 1 of4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. DR. BERND at Plainti?ig v. RICK SCOTT, in his o?icial as Governor-of?ng State of?o?da, etal., Defendants. RESPONSE TO THE NATIONAL RIFLE ASSOCIATIONS MOTION FQE LEAVE AS MEQS CM respond to the motion of the National Ri?e Association for leave to participate as Mmm?ae inthiscase (DE 50). Plaintit?fsdonot opposetheNRA?s requestto participate as andaas curiae as long as (l)Plainti??s are granted leave to respond to theNRA?s amicus brief and the Defendant?s opposition to the preliminary injunction in a single reply with enlarged page limits of up to 15 pages, (2) the participation does not interfere with the Court?s expedited schedule for hearing Plaintiff?s motion for a preliminary injunction, and (3) argumenttimeat thepreliminaiy injunction heating setby the Court for July 13. 20! l, or omerwise given any rights as a party. Initially, last week, theNRA ?led amotionto intervene, butdid not seektopar?cipate in this action by ?ling an anu'axs curiae brief despite Plaintiffs? expressed non-opposition to such participation under the limited circumstances herein. Following Plaintiffs? opposition to the motion to intervene, which noted that comts repeatedly have rejected intervention Case Document 52 Entered on FLSD Docket 07/05/2011 Page 2 of 4 for lobby gimp: such as the NRA but allowed for their participation simply am curiae, the NRA belatedly ?led the instant motion to participate as amiws cun'ae. In light of the motion to participate as mm Mac, as well as the organization?s acknowledged and frequent pam'Cipa?on as an amicus cram in other (see Proposed IntervenorNational Ri?e Association?s Motion for Leave to Participate as Amicus Curiae at 2 (DB this Court should deny the pending motion to intervene. If this Court grants the NRA's motion to participate as auteur curiae, Plainti??s propose ?tattheybepermittedto ?lea single, ?ledby the Defendants and mm inopposition to Plainti??s? motion fora preliminary injunction. bytheNRA,I In addition, Plaintiffs opposetheNRA?s requesttoparticipateinthe July 13. 2011? hearing onthepreliminmy injunction. Plainti??sin?teir oppositionto theNRA?smotionto intervene, the defendants andNRA inthe ease moved-lapping and, thus, injunction heating or otherwise not as a party to this litigation Plaintiffs have attached a proposed order consistent herewith as Exhibit A. infant, alreadyhas submittedas anexhibittotheir motion) a twenty-page response on the merits of Plaintiffs? motion, Plaimi??s, in fairness, should be entitled to ?le a ten-page reply to the brief in addition to a ten-page reply to the Defendants? response to their motion for preliminary mjunction. In order to lessen the burden on the Court, Plaintiffs requests that ithc allowed to ?le a ?fteen-page consolidated response. 2 Case Document 52 Entered on FLSD Docket 07/05/2011 Page 3 of 4 Dated: July 5, 2011 Respectful)? submitted, .Mullins Edward M. Mullins (Fla. Bar No. 863920) emu] Hal M. Lucas (Fla BarNo. 853011) hlucas@astidavis. com ASTIGARRAGA DAVIS MULLINS GROSSMAN, PA. 701 Brickell Avenue, 16th Floor Miami. Florida 33131-2847 Tel; (305) 372-8282 lst: (305) 372-8202 -and- Bruce S. Manheim, Jr.? com Douglas H. Ha?wMDdemeier? Augustine M. Ripa" Julia M. Lewis" h?ialewimm 00m ROPES GRAY LLP 700 12th Street NW, Suite 900 Washington DC. 2005 Tel: (202) 508-4600 Fax: (202) 383-8332 -and- Jonathan E. Lowy? jlowy@bradymail. org Daniel R. Vice' BRADY TO PREVENT GUN VIOLENCE Legal Action Project 1225 Street NW, Suite 1100 Washington, DC 20005 Tel; (202) 289-7319! Fax: (202) 898-0059 *Admiued pro hac vice Counsel for Plaintiffs Case Elewment 52 Entered on FLSD Docket 071052011 Page 4 of4 0E SERVIQE I HEREBY CERTIFY that on July 2011, I electronically ?led the foregoing (woman with the Clerkofthe Comtuaingthe CMIECF ?ling system. I alsocertifythatthe foregoing documentisbeing servedthisdateon allcounselofrecordorpro sepm?esontheServiceLiet .below in the manner speci?ed, either via transmission ofNotices of Electronic Filing generated bytheCM/ECF systemonin orparties who are not authorized to receive electmnically Notices of Electronic Filing. M. 'th Edward M. Mullins (Fla. Bar No. 863920) SERVICE LIST et al. v. Scott, etai. Case No.: United States District Court, Sou?lem Disnict of Florida Jason Vail Aaai?ant Attorney (30an O?ioe of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Telephone: (850) 414?3300 Counsel for Defendanh? Electronically served via CMIECF Gregory M. Cesarano Carlton Fields, P.A. Miami Tower 100' Southeast Second Street Suite 4200 Miami, Florida 33131 Telephone: (305) 530-0050 Facsimile: (305) 530-0055 Cozmselfbr Proposed Inta-venor National Ri?e Association Bleou'onically served via CMIECF Case Docuinent52-1 Entered on FLSD Docket 07/05/2011 Page 1 of2 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. Il-ZZOZG-Civ?Cookefl?m?no?' DR. BERND WOLLSCIEAEGER et al., Plaintiffs, v. RICK SCOTT, in his of?cial capacity as Governor of the State of Florida, et 81., Defendants. ORDER DENYING MOTION TO AND GRANTING MOTION Em LEAVE T0 TE AS MCUS 99? THIS MATTER is before the Court on the Motions of tho National Ri?e Association to Intervene (DE 36) or, in the alternative, for Leave to Participate as Amicus Curing (DE 59). thawin, .hcreby ORDERS AND ADJUDGES that: TthotiontoIntervencis DENIED. 'c?ipatc in the proceedings as amicw curiae pursuant to the NRA's motion ?led July 5, 2011 0), isdcemnd It is HEREBY ORDERED that Plaintiffs may ?le a bn?cf of up to ?Men pages in a consolidated reply to the brief and the Defendants? opposition to the preliminary injunction byJuly 8, 2011. Case Document 52-1 Entered on FLSD Docket 071051201 1 Page 2 of 2 It is ORDERED thattheNRAmaynot submit any?irthermcmomndn in this actionwithout andlikcwisc maynot participate in the hearing at oral argument scheduled for My 13, 2011, in regard to plaintiffs? motion for a preliminary or my ?lm motions without leave of Court.~ DONE AND ORDERED in Chambers, in Miami, Florida, this day of The Honorable Marcia G. Cooke United States District Judge Copies fumishsd to: All Counsel of Record I I From: Cunningham, Katie Sent: Friday, March 04. 2011 3:30 PM To: 'MPHammerIanlmm?, Subject RE: HB 155 - Draft Amendment Attachments: Believe me -i had no Intent to change the thrust of anything 6? See attached and let me know if thet?li I rewarded (1)la) in the ?rst place so that it matched the format of the prohibitions in (nib) and to}. Katie Orruu?n?rm, Policy Chief Giuliani Justice Subcommittee Phone: (850) 488-6333 Fax: (850) 413-0420 From: MPHanvnerwaolmm [maltanPHammermaoLoom] Sent: Friday, March 04, 2011 3:24 PM To: Cunningham, Katie; 1tbr'odem0yahoomm Subject: Re: HB 155 - Draft Amendment Katie, We NEED the bill to oonthue to say that asking the question is a violation of privacy rights. You are changing the whole thrust of the bill by gatultmsiy rarnovlng language that is important to purpoae of the bli. Please. put the ?rst section Mes itwas and amend has I suggested. In a message dated $412011 2:57:17 PM Eastern Standard Time, writu: Rep. Braden - Attached Is a revised version of the amendment to H3 155 that I sent earlier. This version makes It clear that dude are from asking about firearms. This change required some re-wording of subsection (6) of the a bill. Again. the diifarencee are in yellow. Let me know If okay to file or if you have any questions. Thanks! Katie Cunningham, Policy Chief Criminal Justice Subcommittee Phone: (860) 488-6333 Fax: (850) 413-0420 AMENDMENT Bill NO. HB 155 (2011) Amendment No. 1 ACTION ADOPTED (YIN) ADOPTED AS AMENDED ADOPTED w/o OBJECTION (YIN) FAILED TO ADOPT (YYN) OTHER Council/Committee hearing bill: Criminal Justice Subcommittee Representative Brodeur offered the following: Amendment (with?tit1e amendment) Remove everything after the enacting clause and insert: Section 1. Section 790.338, Florida Statutes, is created to- read: 790.338 Medical privacy concerning firearms; prohibitions; penalties; eXOeptions.? A.public or private physician, nurse, or other medical staff person may not inquire, either verbally or in writing, about the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile of a patient Or the family of a patient. Such inquiries violate the privacy of the patient or the pgtient?s family members. A.public or private physician, nurse, or other medical staff person may not condition receipt of medical treatment or medical care on a person's willingness or refusal to disclose Page 1 of 5 155-Brodeur-Oltz) AMENDMENT Bill Nb. HB 155 (2011) Amendment Nb. 1 personal and private information unrelated to medical treatment in violation of an individual?s privacy as specified in this section. A public or private physician, nurse, or other medical staff person may not intentionally, accidentally, or inadvertently enter any disclosed information concerning firearms into any record, whether written or electronic, or disclose such information to any other source. (2)1a) A person who violates a provision of this section commits a noncriminal violation as defined in s. 775.08 punishable as provided in s. 775.082 and s. 775.083. If the court determines that the violation was knowing and willful or that the person committing the prohibited act, in the exercise of ordinary care, should have known the act was a violation, the court shall access a fine of not less than, $10,000 for the first offense; not less than $25,000 for the second offense; and not less than $100,000 for the third and subsequent offenses. The person found to have committed the violation shall be personally liable for the payment of all fines, costs, and fees assessed by the court for the noncriminal violation. I (3) The state attorney in the circuit where the violation is alleged to have occurred shall investigate complaints of noncriminal violations of this section and, where the state attorney determines probable cause that a violation exists, shall prosecute violators in the circuit court where the violation is alleged to have occurred. Any state attorney who fails to execute his or her duties under this section may be Page 2'of 5 155-Brodeur-01(2) munm Bill No. HB 155 (2011) NO. 1 held accountable under the appropriate Florida rules of professiOnal conduct. (4)-The state attorney shall notify the Attorney General of any fines accessed under this section and notwithstanding s. and if a fine for a violation of this section remains ygpaid after 90 days, the Attorney General shall bring a ciyil action to enforce the fine. - (5) Except as required by s. 16, Art. I of the State Constitution or the Sixth Amendment to the united States Constitution, public funds may not be used to defend the unlawful conduct of any persOn charged with a knowing and willful violation of this section. (6) Notwithstanding any other provision of this section, it is not a violation for: A as defined in s. 394.455, as defined in s. 490.003, school as defined in s. 490.003, er clinical social worker as defined in s. 491.003, to make an inquiry prohibited by paragraph (1) when the person making the inquiry in good faith believes that the possession or control of a firearm or ammunition by the patient would pose an imminent threat to himself, herself, or others. jb) A public or private physician, nurse, or other medical personnel to make an inquiry prohibited by paragraph411)(a) if such inquiry is necessary to treat a patient during the course and scope of a medical emergency which specifically includes, but is not limited to, a mental health or episode where the patient's conduct or reasonably indicate that Page 3 of 5 155-Brodeur-01(2) 100 101 102 AMENDMENT Bill Nb. HB 155 (2011) Amendment No. 1 the patient has the capacity of causing harm to himself, herself, or others. However, a patient?s response to any inquiry permissible under this subsection shall be.private and shall not be disclosed to any third party not participating in the treatment of the patient other than a law enforcement officer conducting an active investigation involving the patient or the events giving rise to a medical emergency. The exceptions_provided by this subsection do not apply to inquiries made due to a person's general belief that firearms or ammunition are harmful to health or safety. (3) Medical records created on or.before the effective date of this Act do not violate this Act, nor is it a violation of this Act to transfer such records to another health care provider. . Section 2. This act shall take effect upon becoming a law. I .A Remove the entire title and insert: A bill to be entitled An act relating to the privacy of firearms owners; creating s. 790.338, prohibiting physicians or other medical personnel from inquiring, either verbally or in writing, about the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile Page 4 of 5 155-Brodeur-01(2) 103 104 105 106 107 108 109 110 111 112 113 114 115 AMENDMENT 3111 No. HB 155 (2011) Amendment Nb. 1 of a patient or the family of a patient; prohibiting conditioning the receipt of medical treatment or care on a person?s willingness or refusal to disclose personal and private information unrelated to medical treatment in violation of an individual?s privacy contrary to SpeCified provisions; prohibiting entry of certain information concerning firearms into medical records or disclosure of such information by Specified individuals; providing noncriminal penalties; providing for prosecution of violations; requiring informing the Attorney General of prosecution of violations; providing for collection of fines by the Attorney General in certain circumstances; providing exemptions: providing an effective date. Page 5 of 5 From: MPHamrnerloaolmm Sent: Monday, September 30. 2013 7:33 PM To: Beagle. Gavin Cc Fudge, Jason; Cunningham, Katie; Cox, Ryan Subject: Re: Revised Bill Draft/Education Attachments: Gavin All We have a few things that we think would make this draft better. On line 35 change the word ?Using" to Brandlahing 0n lines 37-38 say "two hches or lees in overdl length? Add a number 8. that says something Ike Wearing tee shirt or other wearing apparel that displays a picture of a firearm or the symbol or logo of an organization that supports Second Amendment rights. Lines 49-62 are basically OK but could be tightened up by saying "seriously dismptive to student learning? on line 50. This would let teachers drawa line between the kid who's boisterous but will sit down and be quiet when asked. and the real problem student this changes we would be good to 90. Marion Hammer In a message dated 9/3012013 2:08:37 PM Eastern Daylight Time, writes: Hl Marion, Hope you are doing well. It was more to meet you the other day. Please attached the revised draft on simulated theme or weapons in schools. Pleaeefeel?ee to contact me if i Have a great day. Gavin Gavin E. Beagle Attorney Educatlon Committee Florida House of Representatives Phono: (550; 717-5537 Fax: (350) 414-6882 Please note: Florida has a very broad pubuc room-do law. Most written communications to or from state officials state bushes: are public records amiable tome pub?c and media upon request. Your e-mail communications may be subject to public disclosure. A F3 EEIH A I Bil YEAR 1 A bill to be entitled 2 An act relating to providing an effective date. 3 4 Be It Enacted by the Legislature of the State of Florida: 5 6 Section 1. Paragraph (9) of subsection (2) of section 7 1006.07, Florida Statutes, is amended to read: 3 1006-07 District school board duties relating to student 9 discipline and school safety.?The district school board shall 10 provide for the proper accounting for all students, for the 11 attendance and control of students at school, and for proper 12 attention to health, safety, and other matters relating to the 13 welfare of students, including: 14 (2) CODE OF a code of student 15 conduct for elementary schools and a code of student conduct for 16 middle and high schools and distribute the appropriate code to 17 all teachers, school personnel, students, and parents, at the 18 beginning of every school year. Each code shall be organized and 19 written in language that is understandable to students and 20 parents and shall be discussed at the beginning of every school 21 'year.in student classes, school advisory council meetings, and 22 parent and teacher association or organization meetings. Each 23 code shall be based on the rules governing student conduct and 24 discipline adopted by the district school board and shall be 25 made available in the student handbook or similar publication. Page1of 3 CODING: Wows 9111ka are dele?ons; words underlined are additions. 81L 'Wy? Each code shall include, but is not limited to: (9) thice that the possession of a firearm or weapon as defined in chapter 790 by any student while the student is on school property or in attendance at a school function is grounds for disciplinary action and may also result in criminal prosecution. Simulating a firearm or weapon while playing is not grounds for disciplinary action or referral to the criminal justice or juvenile justice system- Such conduct includes, but is not limited to: 1. Using a food item to simulate a firearm or weapon; 2. Possessing a tOy firearm or weapon which is two inches or less; 3. Possessing a toy firearm or weapgn made of plastic snap together building blocks; 4. Using a finger or hand to simulate a firearm or weapon; 5. Vocalizing an imaginary firearm or weapon; 6. Drawing agpicture of, or possessing an image of, a firearm or weapon; or 7. Using a pencil, pen, or other writing utensil to simulate a firearm or weapon. However, a student may be subject to disciplinary action when simulating a firearm or weapon is disruptive to student learning, causes bodily harm to another person, or places mama CODING: Words snakes are deletions; words underlingg are additions. NU. YEAR 51r another person in reasonable fear of bodily harm. The severity 52 of any consequences imposed upon a student, including referral 53 to the criminal justice or juvenile justice system, must be 54 proportionate to the severity of the infraction and consistent 55 'with district school board policies for similar infractions. If 56 'a student is disciplined for such conduct, the school principal 57 or his or her designee shall call the student?s parent. 58. Section 2. This act shall take effect July 1, 2014. . Paga3of3 CODING: Words stricken are deletions; words unggjimd are additions. from: MPHammerl?eoLcom Sent: Wednesday. October 02, 2013 1224 PM To: Beagle, Gavin Cc Fudge, Jason; Cunningham, Katie; Cox. Ryan Subject: Re: Revised Bill Draft/Education Attachments: Thank you all. This draft is good. We'regood to go. In a mmaga dated 10/2/2013 11:24:57 AM Eastern Daylight Time, GavlnBeagbamyflorldehoueegov writes: HI Marion. Tharirs tor the good input. This draft inoorpomtaa suggestions. Pleasefeelfree mewlth questions orlf. Have a great day. Gavin E. Beagle Attorney Educdlon committee Florida House of Representatives Phone: (850) Fax: (850) 414-8882 Please note: Florida has a Very broad public records law. Most written communications to or from state of?cials regarding stale bushes: are public records available to the public and medla upon request. Your email communications may be subject to public disclmuro. From: MPHammertanlmm Sent: Monday, September 30. 2013 7:33 PM . To: Beagle, Gavin Cc: Fudge, Jmn; Cunningham. Katie: Cox. Ryan Subject: Re: Revised Bill DraftIEduoetlon Gavin 8: All We have a few things tint we think would mute this draft better. On line 35 change the word 'Using' to Brendishing On lines 37-38 say inches or less in overall length" Add a number 8. that says something like "Wear? a tee shirt or outerwearing apparel that displays a plcurre of a- ?mann or the symbol or logo of an organization that supports Second Amendment rights. Lines 49-52 are basically OK but could be tightened up by saying ?seriously disruptive to seldomleamlng' on line 50. This would letteachers draws line between the who's boisterous but will down and be quiet when asked, and the real problem student. Marlon Hammer In a message dated 9130/2013 2:08:37 PM Eastern Daylight Time, writes: Hi Marlon, Hopeyou are dohgwell. Itwss nicetomeetyoutheotherday. Please find attached the revised draft on slmuieted ?rearms or weapons in schools. Please feel free to contact me if i can further assist. Have a gram day, Gavin Gavin E. Beagle Mbmoy Education Committee Florida House of Representatives Phone: (050)117-5537 Fax: (860)414-6882 Phase note: Florida has a very broad public records law.? Most Mitten communications to or from state regarding state are public records available to the public and media upon request Your e-meil communications may be subject to public disclosure. I A f1 F: hl'T A BKL YEAR 1 A bill to be entitled 2 An act relating to providing an effective date. 3 4 Be It Enacted by the Legislature of the State of Florida: 5 . 6 Section 1. Paragraph (9) of subsection (2) of section 7 1006.07, Florida Statutes, is amended to read: 8 1006.07 District school board duties relating to student 9 discipline and school safetyw?The district school board shall 10 provide for the proper accounting for all students, for the 11 attendance and control of students at school, and for proper 12 attention to health, safety, and other matters relating to the 13 welfare of students, including: 14 (2) CODE OF STUDENT a code of student 15 conduct for elementary schools and a code of student conduct for 16 middle and high schools and distribute the appropriate code to 17 all teachers, school personnel, students, and parents, at the 18 beginning of every school year. Each code shall be organized and 19 written in language that is understandable to students and 20 parents and shall be discussed at the beginning of every school 21 year in student classes, school advisory council meetings, and 22 parent and teacher association or organization meetings. Each 23 code shall be based on the rules governing student conduct and 24 discipline adopted by the district school board and shall be 25 made available in the student handbook or similar publication. Pqp1c?3 CODING: Words season are deletions; words underlined are additions. NU. Each code shall include, but is not limited to: NOtice that the possession of a firearm or weapon as defined in chapter 790 by any student while the student is on school property or in attendance at a school function is grounds for disciplinary action and may also result in criminal prosecution. Simulating a firearm or weapon while playing or wearing clothing or accessories which depict a firearm or weapon or express an opinion regarding second amendment rights are not grounds for disciplinary action or referral to the criminal justice or juvenile justice system-under this paragraph and 5. 1006.13, F.s. Simulating a firearm or weapon while playing includes, but is not limited to: 1. Brandishing a food item to simulate a firearm or weapon; 2. Possessing a toy firearm or weapon which is two inches or less in overall length; 3. Possessing a toy firearm or weapon made of plastic snap-together building blocks; 4. Using a finger or hand to simulate a firearm or weapgn; 5. Vocalizing an imaginary firearm or weapon; 6. Drawing a picture of, or possessing an image of, a firearm or weapon; or 7. Using a pencil, pen, or other writing or drawing utensil to simulate a firearm or weapon. Page2 of3 StudentDisdplineanDra??evisom 0213) CODING: Words skieken am deletions: underlined are additions. FLORIDA HOUSE OF REPRESENTATIVES 51 52 .However, a student may be subject to disciplinary action when 53 simulating a firearm or weapon substantially disrupts student 54 learning, causes bodily harm to another person, or places 55 another person in reasonable fear of bodily harm. The severity 56 of any consequences imposed upon a student, including referral 57 to the criminal justice or juvenile justice system, must be 58 proportionate to the severity of the infraction and consiStent 59 with district school board policies for similar infractions. If 60 a student is disciplined for such conduct, the school_principal 61 or his or her designee shall call the student's parent. 62 Disciplinary actions involving student clothing or accessories 63 shall be determined pursuant to paragraph unless the 64 wearing of the clothing item or accessory causes a substantial 65 to student learning, in which case the infraction may 66 be addressed in a manner that is consistent with district school 67 board policies for similar infractions- This paragraph may not 68 be construed to prohibit a public school from adopting a school 69 uniform policy. 70 Section 2. This act shall take effect July 1, 2014. Page 3 of 3 CODING: Words wishes are dele?prs; words gngg?ined ane additions. I I From: Cunningham, Katie Sent: Tuesday, January 15, 2013 1025 AM To: Workman, Ritch; Illfl. Bethany Cc: Marion Hammer - Matt Puckett (ma?o?pbaorgl'; Havlicak, Randy, Hamby. Torn Subject Security Of?cer Bill Draft Attachments: Security Of?cemdocx Rep. Worh?nan, 2012). We recently satin on a meetlng with the NRA and the regarding this legislatlon, which resulted In the two groups certaln? changes to the bill. Attached ls a that is ldentiml to last year's but for following: - The DRAFT narroWs de?nition of the Infrastructure facility?; and - Includes ?hold harmless? language for law enforcement of?cers and security of?cers. Give me a shout if you have any questlons. Thanks! Katie Cunningham, Pnh'q Florida How: 4'qu mum: Justice Subcm?i?a Phone.- (850) 717-4852 BILL ORIGINAL YEAR 1 A bill to be entitled 2 An act relating to licensed security officers; 3 amending s. 493.6120, providing that a person 4 who engages in any activity for which ch. 493, F.S., 5 requires a license, but who acts without having a 6 license, commits a misdemeanor of the first degree; 7 providing that such person commits a felony of the 8 third degree for a second or subsequent offense of 9 engaging in activities without a license; authorizing 10 the Department of Agriculture and Consumer Services to 11 impose a civil penalty not to exceed a specified 12 amount; providing that penalties do not apply if the 13 person engaged in unlicensed activity within 90 days 14 after the expiration date of the person's license; 15 providing that a person who, while impersonating a 16 security.officer, private investigator,'recovery 1? agent, or other person required to have a license 18 under ch. 493, P.S., knowingly and intentionally 19 forces another person to assist the impersonator in an 20 activity within the scape of duty of a professional 21 licensed under ch. 493, F.S., commits a felony of the 22 third degree; providing that a person.who impersonates 23 a security officer or other designated officer during 24 the commission of a felony commits a felony of the 25 second degree; providing that a person who 26 impersonates a security officer or other designated 27 officer during the commission of a felony that results 28 in death or serious bodily injury to another human Sacun?ty Of?ce's Page1of7 CODING: Words shaken are deleilons; words uMerlinsd are additions. being commits a felony of the first degree; authorizing a licensed security officer or a licensed security agency manager to detain a person on the premises of a critical infrastructure facility in certain circumstances; requiring the security officer to notify the law enforcement agency as soon as possible; requiring that custody of any person temporarily detained be immediately'transferred to the responding law enforcement officer; providing for an exception to the immediate transfer; providing that the responsibilities of the security officer are limited to specified locations; prohibiting a security officer from detaining a person longer than is reasonably necessary; authorizing the security officer to search the person detained under certain circumstances; defining the term ''critical infrastructure facility"; providing identification requirements for certain licensed security officers; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Section 493.6120; Florida Statutes, is amended to read: 493.6120 Violations; penalty.? Except as provided in paragraph a person who engages in any activity for which this chapter requires a license and who does not hold the required license commits a . Page 2 of 7 Security Of?cers CODING: Words shaken are deletions: words undemngg ate additions. (J A. P1 0 F: f! hl?r A I BILL ORIGIML YEAR 57 misdemeanor of the first degree, punishable as provided in s. 58 775.082 or s. 775.083. - 59 A second or subsequent violation of paragraph is a 60 felony of the third degree, punishable as provided in s. 61 775.082, 3. 775.083, or s. 775.084, and the department may seek 62 the imposition of a civil penalty not to exceed $10,000. 63 Paragraph does not apply if the person engages in 64. unlicensed activity within 90 days after the date of the 65 empiration of his or her license. 66 A person who, while impersonating a security 67 officer, private investigator, recovery agent, or other person 68 required to have a license under this chapter, knowingly and 69 intentionally forces another person to assist the impersonator 70 in an activity within the scope of duty of a professional 71 licensed under this chapter commits a felony of the third 72 degree, punishable as provided in s. 775.082, 8. 775.083, or s. 73 775.084. 74 A person who violates paragraph during the course 75 of committing a.felony commits a felony of the second degree, 76 punishable_as provided in s. 775. 082, s. 775. 083, or s. 775. 084. 77 A person who violates paragraph during the course 78 of committing a felony that results in death or serious bodily .79 injury to another human being commits a felony of the first 80 degree, punishable as provided in s. 775.082, 8. 775.083, or s. 81 775.084. . 82 A Any person who violates any provision of this 83 chapterL except s. 493. 6405(1) or commits a misdemeanor of 84 the first degree, punishable as provided in s. 775.082 or s. Page 3 of 7 CODING: Wads smelter-I are dela?ons; wads gnde?ined are additions. FLORIDA HOUSE OF REPRESENTATIVES mu. 85 775.083. 86 5 Any person who is convicted of any violation of 87 this chapter is shall not be eligible for licensure for a period 88 of 5 years. 89 l?l+a+ A Any=person who violates or disregards any cease 90 and desist Order issued by the department commits a misdemeanor 91 of the first degree, punishable as provided in.s. 775.082 or s. 92 775.083. In addition, the department may seek the imposition of 93 a civil penalty not to exceed $5,000. . 94 1?1+4+ 5 Any person who was an owner, officer, partner, or 95 manager of a licensed agency at the time of any activity that is 96 the basis for revocation of the agency or branch office license 97 and who knew or should have known of the activity, shall have 98 his or her personal licenses or approval suspended for 3 years 99 and may not have any financial interest in or be employed in any 100 capacity by a licensed agency during the period of suspension. 101 Section 2. Protecting critical infrastructure facilities.? 102 (1) A licensed security officer who possesses a valid 103 Class license, or a licensed security agency manager who 104 pgpsesses a valid Class license, who is on duty, in uniform, 10$ providing security services on the premises of a critical 106 infrastructure facility, and who has probable cause to believe 107 that a person has committed or is committing a crime against the 108 client, or the client's patron, of the licensed security officer. 109 or the licensed security agency manager, may temporarily detain 110 the person for the purpose of ascertaining his or her identity 111 apd the circumstances of the activity that is the basis for the 112 temporary detention. The security officer or security agency Page 4 of 7 CODING: Words stricken are deletions: words undenlned are a'ddltions. E'l? E5 8 I 8 EU. (NUGWAL YEAR 113 manager may detain the person in a reasonable manner until the 114 responding law enforcement officer arrives at the premises of 115 the client and is in the presence of the detainee. 116 i (2) When temporarily detaining a person, the licensed 117 security officer or security agency manager shall notify the 118 appropriate law enforcement agency as soon as reasonably 119 pgssible. Temporary detention of a person by a licensed security 120 officer or security agency manager must be done solely for the 121 pprpose of detaining the person before the arriVal of a law 122 enforcement officer. Custody of any person being temporarily 123 detained shall be immediately transferred to the responding law 124 enforcement officer. .125 (3) A licensed security officer or security agency manager 126 may not detain a person under this section after the arrival of 127 a law enforcement officer unless the law enforcement officer 128 requests the security officer or security agency manager to 129 continue detaining the person. The responsibilities of the 130 licensed security officer or security agency manager do not 131 extend beyond the place where the person was first detained or 132 in the immediate vicinity; 133 13) A person may not be temporarily detained under this 134 section longer than is reasonably necessary to effect the i 135 purposes of this section. 136 (5) If a licensed security officer or security agency 13? manager, while detaining a person under this section, observes 138 that the person temporarily detained is armed with a firearm, a 139 concealed weapon, or a destructive device that poses a threat to 140 the safety of the security officer or security agency manager, P3p50r7 Security Of?cer CODING: Words mm are deletions; words ungenined are additions. C) I Ax l1 0 ll E'fd A 8 Ski ORKWWE YEAR 141 or any person for whom the security officer or security agency 142 manager is responsible for providing protection, or if the 143 detainee_admits to having a weapon in his or her possession, the 144 security officer or security agency manager may conduct a search 145 of the person and his or her belongings only to the extent 146 necessary for the purpose of disclosing the presence of a 147 weapon. If the search reveals such a weapon, the weapon shall be 148 seized and transferred to the responding law enforcement 149 officer. 150 1?l As used in this section, the term "critical 151 infrastructure facility" means any one of the following, if_i? 152 employs measures such as fences, barriers, or guard posts that 153 are designed to exclude unauthorized persons: 154 A chemical manufacturing facility; 155 A refinery; 156 An electrical power plant as defined in s. 403.031, 157 Florida Statutes, including a substation, switching station, 158 electrical control center, or electric transmission or 159 distribution facility; 160 A water intake structure, water treatment facility, 161 wastewater treatment plant, or pump station; 162 15) A natural gas transmission c0qpressor statiOn; 163 if) A liquid natural gas terminal or storage facility; 164 jg) A telecommunications central 165 A deepwater port or railroad switching yard; or 166- A gas processing plant, including a plant used in the 167 processing, treatment, or fractionation of natural gas. 168 (7) A Class or Class licensee shall perform Page 6 of 7 Security Of?ces CODING: Words stricken am deletions; words und?lnsd are addmons. C) A. PI 0 (J C) F'l? ES I BEL GMGEML 169 duties regulated under this section in a uniform that bears at 170 least one patch or emblem visible at all times clearly 171 identifying the agency. 172 (8) The taking into custody and detention by a law 173 enforcement officer, a licensed security officer, or a licensed 174 security agency manager, if done in compliance with this 175 section, does not render such law enforcement officer, licensed 176 security officer, or licensed security agency manager criminally 177 or civilly liable for false arrest, false imgrisonment, or 178 unlawful detention! . 179 Section 3. This act shall take effect July 1, 2013. Page 70f? Security Of?cers CODING: Words wicks? we deletions; words undg?ing are additions. me: MPHammerl Sent: ,Thursday. October 10, 2013 1:52 PM To: Cunningham, Katie Subject: bumle'n of proof Atuchmanu: 1 12 c>co'm Ln a homo Florida Senate - 2014 COMMITTEE AMENDMENT 8111 Nb. SB 130 LEGISLATIVE ACTION Senate . House The Committee on Judiciary recommended the following: Senate Amendment (With title amendment) Delete lines 58 - 79 and insert: (2) A defendant is entitled to an evidentiary hearing on a Eretrial motion to diswiss an indictment_or information bx making a prime facia showing of the justifiable use of forge; Qgring the hearing, bears the burden of proving by a Ereponderance of the evidence that the defendant?s use of force gas not lawful. For purposes of the motignL the judge shall all factual disputee relating to the defendant?s use of force, but any factual findings are not established for the Page 1 of 2 10/4/2013 2:42:00 PM JU.JU.00430 EurQoses of any subseguent trial. The defendant?s testimony is not admissible in a hearing or trial excegt for the ?Qurgoses of impeachment. The denial of the defendant's motion to Florida Senate 2014 COMMITTEE AMENDMENT Bill No. SB 130 dismiss or any factual findings at the hearing do not greclude the defendant from raising aux defense or presenting any evidence at trial; Delete line 15 and insert: upon which an immunity may be claimed; providing for a pretrial hearing on claims of immunity based on the justifiable use of force; proViding that the state bears the burden of proving that the defendant is not entitled to immunity by preponderance of the evidence; amending s. Page 2 of 2 10/4/2013 2:42:00 EM JU.JU.OO430 munday, MPHammerI @?ofmm 26, 2013 11:29 AM MPHammerlanlmm RA announces 'fundmisin NRA F?ends_2013__ cap ital; 9 mcord ity?yerpdf CAPITAL FRIENDS OF NRA 5% 0? a? DINNER Thunsday, GAMES October 1 7, 2013 LIVE SILENT AUCTIONS 6:00?10:00pm RAFFLES Non-Political. Charitable Fundraiser PRIZES FAMILY FUN Capital City Friends of NRA Caplta! City Country Club 16016me Dr. Tallahassee. Fl 32301 rm MOM [mpg/340110?; Call 850-933-0008 . 4:1. . L- . :h :nm/ From: MPHammerlanLcom Sent: Monday, March 24. 2014 11:56 AM To: Antonaoci, Peter: Hollingsworth, Adam Subject: Assume you've seen this letter Military Affairs_Deanl.etter.pdf THE FLORIDA SENATE win-m: Ta?lmm mum mem? Merci: 21, 1014 Major General Emmett R. MW, Jr. Florida Nation-l Guam, The Adjutant General P. 0. Box mac Wire, FL 32005-1003 Dear Sin I am your letter of March 20. 2014 apt-tn Terran: ?orman and his appeamnm bcibre?ie Senate Committee on Military and Veterans M?hlrs, Spam. and Dominic Sow?tyofwiich I am 3 mm mambararndfonnu duh-man. [served my commas a member ofthn Unlined Sum Malina Corps Ram and it a retired Sheriff In the State. As I Flondlaru mum and respective human and ammub?fw as presented by his standing In the Florida Na?onal Guard and his ?Men, with imam, In the Adjutant General Corps. (Juries 5. Dean State Sandor, Dl?b'ld: 5 Cc: The Honorable Don Gum. President Florida Senate Chairmpn Thad Altmn and members of Military and VeteransARam, Space Security Committee 0 ?mans I852) HIS-I013 000:! mm mm of the mu Ful?ll! Pro Tempo? From: MPHammerlQeoimn-i Sent: Wednesday. March 19. 2014 4:09 PM To: Antonecci, Peter Subject: Capt. Terrence Gannon Attachments: Appearance Card Capt_Gorman.pdf Aweched lathe appearamelepeaker card of Capt. Terrence German upon which he says he la General Counsel for and is REPRESENTING the Florida Department of Military A?a?e before the Senate Military Affake. Space and Domestic Security Committee today. anal/14 at 11:00am Capt. German's name was called. he did not say he was there for infomationai purposes in case anyone had quostlone.? He Immediately came forward and began his lobbying against the bill. He was cleaty, unequivocally and inappropriately lobbying the committee against Sen. Brandee bll. Did Governor Scott tel Major General Titehawto eend Capt. German to Tallahassee to lobby against Second Amendment rights of Floridians? The bill Capt. German lobbied against (SB-296) la a bill it) protect the Second AmendmentISetf-defenee rights of Floridians during a mandatory evacuation under a state of emergency. it makes I clear that Floridians who do not have Concealed Weapons or ?rearms lloeme can st?l take their fireenne with them when they are evacuating. it prevents them from being treated lite criminals and havhg their gene con?scated When they are evacuating. Capt. Gorrnen cane into the committee meeting in uniform, on time paid for bytaxpayere, to lobby against the oonetltutlmd rights oltaxpayers. He then left the room. He'came there forthe soleand exclusive purpose of against Sen. Brandee' bill. Further. according to Senator Brandea eta?. at no time did Capt. German have the respect and courteeyto contact Sen. Brandee or his staff dlswee the out or inform him that the Florida Department of Mlltay Affa'n Intended to try to kill his bll. lwould Ike to know who. epeol?cdly, asked to lobby against the bill. Further. I would like to know what is being done to undo the harm he has caused with his actions. Myfether gave up his life at Okinawa for Freedom. Our man and women of the sacri?ced and gave their lives in the cause otfree?dom. fighting for our country did not do so in order to permit Capt. German to come here to tryto takethatfreedom lrom us. I would remind you that it was the National Guard that kicked dourn doors and cordleceted gune folioiving Hurricane Katrine. in my eyes, Capt. Gorma'n juet kicked down the doors of bur-abiding Floridians. Below is the link to hearing. it was the ?rst bill up and he wee the first speaker. 103191 le- Thankyou for your time in to ?nd answers for me. Marlon Hammer - . .. Tun FLORIDA Serum: APPEARANCE RECORD MM Taplc EJmn'ls?d Cat-?ml erx?d WamgL an: Number LS mm Name 1 23 LE Exam Amehdmant Baroode Q15 r503 - ?mm a ?k Job Title 5% Address Phone Strut Edau?g?e FL- E~mall Cny State Zip Speaklng: For EjAgainst (El/Wanna: Representing Appearing at request ofChah: Yes we Lobbm'at raglstored with Legislature: D'Yes No Wh?o?ke??enatoimdlabn toenoauragopub?c Mammy, mam. Those who 7km {spartof?zepubllo meeting. 3-001 From: MPHammuanlxom Sent: Monday, April 2014 11:36 AM To: Mouton. Diane Subject: Letter in SUPPORT of Signing HB-89 Threat of Fofce/IO-ZO-Life Atladlmonts A?ached in format Is a letter to Govemor Soul: in support of HB-89 from NRA and Uni?ed Sportsman of Florida. Please be sure aoopy it gets to the Govamor and a copy In the staff person handling thle Issue. Anyon?e may feel free In on" me on these Issues. National Ri?e Association Uni?ed Sportsmen of Florida For Further lnfonnatlon Contact Marlon Hammer (850) 222-9518 April 21, 2014 The Honorable Rick Scott Govemor. State of Florida The Capitol - 400 Seuth Monroe Street Tallahassee. Florida 323990001 RE: HB-ss Threat of Force, by Rep. Nell Combos/Sen. Greg Ever: Deer Governor Scott: . The National Rifle Association ofAmerice and Uni?ed Sportsmen of Florida support and urge you to sign HB-89 relating to Threat of Force. . Under current law, if a person actually Shoots, inlures or kills an attacker, while exercising self-defense. the person is protected by law. However, its person displays a gun and merely threatens to kill an attacker or, if in a state offeer for his/her own safety or the safety ofcthers. a person foolishly ?res a warning shot, abusive prosecutors are charging these people with aggravated assault under 10-20-Lli'e and threatening to put them in prison for 10-20ye . Even though no one is injured and there is no damage or harm, prosecutors are using 10-20-Life as a bettering ram to try to coerce and intimidate innocent people into taking plea bargains. if people refuse to take a plea. believing they did nothing mng. some an?f being fully and maliciously pmsecined for exercising their constitutional right of as defense. The Governor?s Task Force on Citizen Safety and Protection commonly called the 'Stand Your Ground' Task Force met 7 times in different areas of the state. Recomendation 9 reads: "The Task Force recommends the Legislature review Florida's 10-20-Life law to eliminate any unintended consequences." mars what this bill does. It steps malicious and abusive prosecution under 10-20-Life of citizens who have acted in self-defense. Page 2 April 21. 2014 Governor Rick Scott In 1999. the legislature passed 10-20-Life. The intent of 10-204er was to put criminals who use guns THE COMMISSION OF A CRIME behind bars to keep them off our streets The law was only intended to be used to stop plea bargaining and, sentence reductions for gun wielding criminals. lwaehere In 1999?and NRAhelped pessthe law. knowwl-iatwas intendedand why. i assure you, 10~20-Life was never imagined much less intended - to be used against ordinary citizens who. in an act of self-defense or defense of a loved one. threatenedtheuse offorceto step enattectwr. - The state of Florida licenses people to can ?rearms for self-defense and defense of omen. so that if they are" threatened with violence or attack. they have the means for successful defense. Tia-eatening to use deadly force to stop a violent attack Is not aggravated assault it Is self-defense. Self-defense is not a crime. It is a constitutional right and those rights are being trampled. Rep. Charles McBumey, a former prosecutor, called this bill a glitch bill. He is right because this bill is needed to stop unintended consequences of a good law that is now being used for bad purposes. it is abhorrent to think that a person who is suddenly attacked c?wld end up facing charges under 10-20-Life like a common gun-wielding criminal for exercising the oonditutionel right of self-defense by pulling a gun to step an attacker. When the bad guy runs away. it should over. not the beginning of a nightmare because a prosecutor insists upon treating victims iiko criminals. This bill is intended to put a stop to this abuse ofdisa'etion and violation of constitutional rights. Thank you for your consideration. Wm? Marion P. Hammer National Rifle Association Uni?ed Sportsmen of Florida Fran: Sent: Fn'day, May 16.20131 12:55 PM To: Moultom Diane Subject: NRALettar on HB-523- Atladlmon'ls: NRA Letter on HB-523.pdf anached National Ri?e Association I Uni?ed Sportsmen of Florida For Further Information Contact Marion Hammer (850) 222-9518 May 16. 2014 'i'he?i'ionorable Wok Scott Govemor. State of Florida The Capitol 400 South Monroe Street Tallahassee, Florida 82399-0001 RE: HB-azs Firearms Gerry License Applications/Tax Collectors Dear Governor Scott: The-National Ri?e Association of America and Uni?ed Sportsman of Florida support and urge you to sign HB-523 relating to Applications for Licenses to Carry Concealed Weapons or Firearms and Tax Collectors. H8623 will allow the Commissioner of the Department of Agrlodture and Germans: Services (DOACS) to authorize qualified and approved Tax Collectors to ease agents of the Division of UcerIShg and implement the ?Fest-Track? Concealed Weapons and Firearms License (CWFL) application process In their respective counties- Tex cciiectore are not going to issue licenses. They are only going to handle the paperwork for the Division of Licensing. They will only be performing a clerical lmciion. They have no decision making power. They will assist applicants in completing the application. They will ?ngerprint and photograph applicants: collect lheirmoney andlrelning certificateeth?enemdltail ofl-eiectr?onlcailyutothe Division of Licensing. - it Is simply an intake process that puts the application and documentation directly into the electronic system, ratherthan everything being completed on paper and mailed to- Tallahassee where it then must be opened. verified, and the data input into the system by a clerk. ltwilireducetheerrorrate. TallahasseeWhoisreeding ltt?roma piece oipaper. the information wiilbeinputby the verified bythe clerk attire point ofentry. The "Feet-Track? system is currently in place at Department of Agriculture's Regional Oiilces - but there are only eight of them. This bill allow the Division oi Licensing to select Tex Collectors as part at the system who are both quali?ed and strategically situated to better serve the needs oi'the people. Page 2 May 16. 2014 Governor Rick Scott Umortunately. on occasions in the past. DOACS has been unable to timely meet the growing demand in processing CWFL applications. That includes both new applications and renewal applications. Sometimes the demand for licenses surges. based on politics, and titers is no way to flow of the demand. in those cases. due to the Inability to meet the process DOACS has been In direct violation of state law for extended periods of time. Dudng summer of 2008, DOACS began getting way behind in processing applications. Eventually. they gotsot?arbehindthat?'tey hada of house Theywere ?vestenedwithlawsults. months old. ofthelawandwas unableto meetthe demand. So. created and Implemented a ?Fast Track" system for applicants. They put computers. AFIS ?ngerprint scanners. and cameras for passport photos in their eight Regionalomoeesoapdicents apply In person. Unfortunately, there are a limited number of Fest-Track appointments mateach office" canhendle hourtoprocessone applioan. Even though Regional Of?ces are open six (8) days a weak to process applications. - some Regional Offices are booked threMour months in advance. The obvious answer is to use Tex Collectors as agents to handle the clerical Intake of CWFL applcatlons for DOACS. Tax De?ectors are Constitutional Of?cers. Some Tax Collectors already have the necessary equipment in place and some Tax Colleuors already have the necessary BONDED personnel in place. Some Tax Collectors are we! suited to hands this dedcal function for DOACS and some are not. Tax Collectors who desire to participate must apply and be approved by Page 3 May 16. 2014 Governor Rick Scott Any Tax Collector who does not wish to - HEGAHDLESS OF THE REASON -- simply need not apply. Nothing In the bill requires any Tax Collector to participate. it is totally at the discretion of each individual Tax Collector. DOACS has a Regional Of?ces but we have 67 counties. it only a or the 87 Tax Coleman are approved, they will have doubled the opportunities tor the common DOACS will control how many and where Tax Colectors are needed. This Is avm-wintor?te comer/tax payer ?whccomee first It leaiso awln-win for DOACS and a win-Win for participating Tax Colectore. This shouidbeotno ltdoes notinvoive them except to reduce the workload of sheriffs who ?ngerprint CWFL applicants. CWFL Applicants now have two options. This bill will give citizens a third option. Option ONE -- BY MAIL: They request and receive a CWFL application package by mat They fill out a paper application. . They take the ?ngerprint card to a Sherif'e of?ce to be They go somewhereto have apaseport photomIten. They go to abankandgetacashier's check brmoneyorder. They put it all'together and mail it to DOAOS In Tallahassee. They wait. has up to 90 days to issue (or they-break the law). Option TWO - FAST-TRACK at a DOACS Regional Office: Theyceilaneglonaion'lce and flil out the application electronically, get fingerprinted. have their photo taken, pay their- money. submit their documentation and they are done. Option THREE - FAST-TRACK at a Participating Tax Collectors cine-e: They make an appointment to go in to a particpm Tax Collector's of?ce where they fill out the application electronically, get flngerprinted, have their photo taken. pay their money. submit their they are done. Under option three, Tax De?ectors are allowed to charge a convenience tee over and above the standard applications fees for providing the service. The fee covers the Page 4 may 18, 2014 Governor Rick Scott fingerprint eervloe tee (normally charged by sheriffs). the cost of a pawn photo and allservloee Anymonwho doeenotwlehthe added expense or paying a convenience fee, still has the cum two options available. In summary, this'bll will be an anon-nous convenience to citizem. Further, It will hep aeeure the! DOACS can timely md emcierwy handle the Statutory requirements and meet the needs at the citizens of-the State of Florida. Again the National Rifle Association ofAmerlce end Uni?ed Sportsman of Florida support and urge you to sign this bill. Thank you for your omsidemtlon, Marion P. Hammer National Rifle Association Uni?ed of Flexide From: MPHammrlanhcom Sent: Friday, May 16, 2014 12:54 PM To: Moul?ton, Diane NRA Letter on HB-7029 A?ldlments: NRA letter on FIB-7029M mashed .., National Ri?e Association Uni?ed Sportsmen of Florida For Further Information Contact Marlon Hammer (350) 222-9513 May 18. 2014 The Honorable Rick gayemor, IState of Florida 400 South Monroe Street Tallahassee, Florida 32389-0001 RE: Zero Tolerance in Schools Dear Governor Scott: The National Rifle Association of America and Uni?ed sportsmen of Florida support and urge you to sign FIB-7029, Zero Tolerance and Student Code of Conduct . FIB-7029 bythe House K-12 Subcommittee and Representative Dennis Bmdeyend Senator Greg Evers pessedthe Although at; on deals with-childrenwho guns while b?laylng orwearltems . This is a bi! about protecting cl'ildren from i bad decisions by school administrators who are merged with enforcing a so-celled Zero rence polcy, When Zero Tolerance and Zero Common Sense come together. innocent children get traumatized and their lives get turned upside down; It has to stop. Omar-enmity are simply be?ng children should not be punished because some adult lacks common sense or the capacity forrationel judgment. Protecting children from the ridiculous over-reactions of some teachers and school principals control. It was time for the ielsture to step in and protect children from these over- reections, end they have. Mg Words cannot adequately de?ne the actions of a school admhiem who suspends or expats a child for the following: An 8-yearolcl boyfor using his linger as an lrnaglna'ygun. A7-year-oldboyfcr drawing astick?gure hoidhgagun. Page 2 May 18. 2014 Gwemor Riok Scott A ear-old little lri fortnikln to classmates about. with her ?Hello Kitty' bubble gm - trillion blows soagy school amused ham? a 'terrorlet threat: suspendedherfrom ochoolfor 10 days. oem htneedtobe involved. and demanded that she get a evaluation. . somebody needed a evaluation. but it wasn't the Swear-old child. pendeateaohomermdmaking shooting noises. A school spokeswomm said, "We oonsi A 8-year-old deaf oh?d'e American Sign Language sign for his nonte is a sign shaped lire a gun 811d his asked his parents .violates their weapons policy. The child's name is Hunter. The words that come to mind for these actions are irrational and absurd. You can?t legislate common sense orrationai udgement. butti'loLegisiature has provided gt?dellnesto stop of?cials from things that are traumat-ng innocent oi'ilidren and their 3. This is a critically important bill and. again. the National Ri?e Asaochtlon of America and Uni?ed Sportsman of Florida urge you to sign this bill. Thank you for your consideration, 4-K Marlon P. Hammer National Ri?e Association Uni?ed Sportsman of Horida From: To: Subject: Abdul-ants MPHammerIQiiol-Oom Wednesday, May 27, 2015 4:58 PM Moulton. Diane Fwd: IMPORTANT QUESTION IMPORTANT QUESTION _l From: MPHammrlanlxom Sent: Friday, May22, 2015 2:34 PM To: Sellers, Mdissa Subjoct: IMPORTANT QUESTION PLEASE tell me. have you seen or even been told about this peii?pn? If not will ask for 'the ?le and look at it. PLEASE Will you please bring it to the Governor?s attention. Waiting to hear from yOu, respecmmy. Marion From: MPHammerIanlxom Sent: Wadnesday, February 26, 2014 1:26 PM To: Antonacci. Peter Subject: HEADS UP Fwd: RE RickSCOtLoom RE RICkSootham From: Jmtin Schmidt Sent: Wednesday, Febmaly 26, 2014 1:06 PM To: MPHammer1@aol.com Subject: RE RickSoottoom i hope you are having a great week and wanted to reach out In regards to a domain auction that I: currently underway rding BickScottxom. i am the broker represent"; the ownerof the domain and would be happy to set up a call to discuss the details. I This is a 30 day auction for the highly premium do main RickScotuzom. The auction went live today and there is already a considerable amount of activity from prominent peeple Involved in the upcoming election. On day 15 ofthe auction if the domain isn't sold a story wm launch via Post to start promotion of the auction. I can be reached anytime by phone/email and look forward to hearing from you. See MeAuc?on by visiting ww?igl?cotgm 'Domaln can be bought anonymoigly and undeer with sale notrepomed Best Regards, Justin R. Schmidt Broker DomainNameSales.oom 0: 1-800-818-1828 6283 Di 1-345-517-21 85 S: From: Bisceglia, Amy Sent.- Wednesday. May 02, 20121001 AM To: 'mphammerlanloom' Su?-ct: FW: Attached scan document Attachments: Marion, Attached, please ?nd the letter sent out by the Governor to the Tampa Mayor regarding 2nd Amendment rights during the RNC. Thanks, Amy Bisceglia RICK SCOTT GOVERNOR May 1, 2012 The Honorable Bob Buckhorn Of?ce of Mayor Bob Buckhorn 315 East Kennedy Blvd, 5m Floor Tempe, Florida 33602 Dear Mayor Buckhom Allowmeto take this opportunity toreplytoyourletter ofMey1,2012,, requesting that] "excl-ciao the powers vested in [me] by the Constitution and the laws of the State of Flarida and issue an executive order prohibiting the transportation of firearms in Downtown Tampa during the [Republican National Convention].? My understanding is that the current security plan will ban ?rearms in the convention center itself, as well as in an immediately adjacent ?safe zone? established by theSecret Service. You are now requesting that citizens be disarmed in all of downtown Tempe, including in areas across the riirer, and distant, trom the convention center and Secret The shortenswer to 3mm requestistundinthean Amendment to the U5. 'tutEon and in Article 1, Section 8 of the Florida Cons?union, These provisions guarantee that the government may not infringe the people?s right ?to keep and bear arm.? The United States Supreme Court has explained that those rights have red force, and that government bans on?rearms are generally impermissible. While the may enforce longstanding prohibitions on the carrying of ?rearms in sensitive places such as schools and buildings, an absolute ban on possession in entire neighborhoods and regions would surely violate the 2nd Ammdment. You note that the th?s temporary ordinance regulates ?sticks, pol-I, and water guns," but that ?rearms are a ?noticeable item missing from the City's temporary ordinance.? Firearms are noticeably included, however, in the 2nd Amendment. The THE me TALMHASSE, Fromm 32399 (850) 488-2272 . FAX {850) 722-4292 Letter to Mayor Buckhom May 1, 2012 Page Two choice to allow the government to ban sticks and poles, but not ?remns, is one that the People made in enacting their state and federal constitutions. Like you, I share the concern that ?violent anti- emment promote or other civil unrest? um pose "dangers" and the ??uent of substantial injury or harm to Florida precious and must be protected from govemmau overreach lam con?dent that the many federal, state, and local law enforcement agencies focused on the RNC will fully our most sacred cons titutioml trail-ions. We have had political conventions in this country since the dawn. of the Republic. They are an eaamtial means of?u-thering our constitutional rights to tree From: FLGOV Inspector General Sent: Tuesday, July 26. 2016 2:11 PM To: MPHammerlGaoimm Subject: Fw: Complaint Attachments: Hemmer 201606080004 7.26.16pd'f Dear Ms. Hammer: Please see the attached correspondence-from the Of?ce of the Chief Inspector General. Sincerely, - Heaths: Rabinson. CiGi? 090mm: Onceof?nClWimpeclorG-munl From: MP er] I In Date.- June 8, 2016 at 2:26:on'da. Subject: Complaint Date: June 8. 2016 To: Me. Melinda Miguel Chief inspector General State of Florida i have received a complaint regarding the claws internal use which i am to you for appropriate action. See below. Subject: Gun Sites blocked ammunition so is this a covert attempt to enhance sates forWaimari? 0r pal-mpg this is just simple diso?mlnatlon against legitimate sporting goods and gun dealers Initiated by an anti-gun state employee of which the Governo: has no knowledge? lwouid appmciato some insight Into this matter. clari?cation of this policy. who Initiated such policy. and what authority. I await your response. Sincerely. Marion P. Hammer Unified Sportsman of Halide 01? DA @fft?ce of the @uhernur mvw?goumm RICK 850-488-7146 850-410-08le ?lx July 28. 2016 Ms. Marion Hammer mghammer1@agi.com RE: Chief inspector General Case 201608080004 Dear Ms. Hammer The Office of the Chief Inspector General received your complaint on June 8. 2016. in which you expressed concerns about internet sites that are blocked on the "state run network.? After having had the opportunity to review your concerns. by copy of this letter. we are referring your complaint to the Inspector General for the Department of Revenue for review and action deemed appropriate. Thank you for bringing this matter to our attention. in the event that you have any further questions, please contact the Inspector General's office for the Department of Revenue at (850) 617-8152. peretions Manager Of?ce of the Chief Inspector General cc/enc: Sharon Doredant. inspector General From: Toumay, En?c Sent: Wednesday, October 05. 2011 2:36 PM To: 'MPHammerlaaolxom' Suhjoct: RE- Qu'estion Attachments: Dsc_soosJPG; osc_5011JPG; Dsc_ From: MPHammerI?aoLcom Imail?boMPl-Iammerlaaolmm] Sent: Wednesday, Odnber 05, 2011 1:12 PM To: Toumay, Eric Subject: Qustlon How are the phone comhg along? Maion no? (850) 212-5411 I A- From: Tom-nay, Erfc Sam: Wednsday. chober 05, 2011 2:36 PM To: 'MPHammerIanlxom' Subhct: RE: Question DSC. From: Sent: Wednesday, October 05, 2011 1:12 PM To: Twmay, Eric Sabina: Qustbn How are the photos comlng along? Marion can (850) 212-5411 is?. 0 V. fl!? Ul. .. .OQC. I. a . . ' I From: Moulton. Diane Sent: Wednesday, April 16. 2014 9:27 AM To: MPHammerlanlmm Cc: Hazleton. Bonnie Subject: RE: [Spamf?m** SpamScore] Request Petersenpdf Attached. From: MPHammer1@aol.com Sent: Tuesday. April 15, 2014 8:33 AM To: Mouton} Diane . Subject: SpamSoone] Request Governa-toml-fB-eo. Manon The letter 18 referenced In news 0le yesterday from News Service of Florida see below FIRST AMENDMENT GROUP SEEKS VETO 0F WARNING The First Amendment Foundation on Monday asked Gov. Rick Scott to veto what has bmnoknown as the ?wamim WNW mil-0mm mwlm?m ?0mm RM RM Mil-350M" mulla?mm Khalil-m Human. Mum-t mm mom Swill-M 335 Elsi Dulles. M, 3m 191 NM Fl. 1230.1 Milling 14 April 2014 The Honorable Rick Scott 0mm of the Governor The Capitol 400 South Monroe Steer Tallahassee, Fl. 32399-0001 Dear Governor Scott: defense?to effectively expunge any record of such finding made by either a or a court. Speci?cally, the bill requires prosecutors to document any decision to dismiss en lnfonnatidn. Indictment, or other charging document, or any decision not to file charges, when lawful self- defense is apparent, and also requires judges who decide to a charge based on ianul Willem to record their findings In either a For example, this legislation would allow someone, whether fanneily charged or not, to hide an arrest record, records misting to the investigation made bythe prosecutor. and even the records the ?rst Amendment Foundation Veto sequent: 89 14 Apr muf?n dismissal - thus potentially allowing for secret arrests and secret investigations. Furthermore, the public and the legal community would not be able to leem from Important dse law For these reasons we TBSpectfully request that you veto 89. We appreciate your attention to our concerns, Governor Scott. lfvou have any questions or would like addl?onal lnfonnatlon, please don't besltate to contact us. Sinoer Barbara A. Petersen, President cc: Jon Kaney, General Counsel, First Amendment Foundation Sam Morley, General Counsel, Florida Press Association 4? From: SIMMONSDAVID on behalf of SIMMONSDAVID Sent Friday. February 15, 2013 12:18 PM To: Baxley. Dennis; Dennis, Debbie; Konkus, John: Marion Hammer (MPHammerleaoLOom) Subject: RE: Stand Your Ground Legislation Mia clunoms: SYG draft 2.1443000: Here is the attachment. From: SIMMONSDAVID Sent: Friday, February-15, 2013 11:50 AM To: Baxiey, Dennis; Dennis, Debbie; JohnKonkusQeogmy?oridamm; Marion Hammer (MPHammer1@aol.com) Subject: Stand Your Ground Legislation Mr; Konkus - Please forward to the Citizen Safety and Protection Task Force Members. Sincerely yours, David Simmons State Senator, District 10 251 Maitiand Avenue, Suite 304 Aitamonte Springs, FL 32701 Phone: 407-262-7578 Fax: 407-262-7580 Email: k)!Florida Senate - 2013 10-005573-13 A bill to be entitled An act relating to the use of deadly force; amending 85. 30.60 and 166.0485, requiring the county sheriff or municipal police department to issue amending s. 776.032, providing that a person who is justified in using force is immune from criminal prosecution and civil action initiated by the person against whom the force was used; defining the term ?criminal prosecution?; clarifying that a law enforcement agency retains the right and duty to fully investigate the use of force upon which an immunity may be claimed; amending s. 776.041, providing that any reason, including immunity, used by an Be It Enacted by the Legislature of the State of Florida: Section 1. Section 30.60, Florida Statutes, is amended to read: Page 1 of 4 CODING: Words serieken are deletions; words underlined are additions. set Florida Senate 2013 10-005573-13 'the county or municipality and owners of businesses located within the county or municipality. (2) The county sheriff or municigal Bolice department shall issue reasonable guidelines for the oggration of such groggams. The rom confronting or attemgting to aggrehend a Eerson suspected of imgroggr or unlawful activitx, subject, however, to those circumstances in which a reasonable arson would be ermitted, authorized, or to assist another Eerson. Section 3. Subsection (1) of section 776.032, Florida Florida Senate - 2013 10:005573?13 Statutes, is amended to read: for justifiable use of force;? (1) A person who uses force as permitted in s. 776.012, 9. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action by the person, personal representative, or heirs of the person, against whom force was used for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. who was acting in the performance of his or her official duties and the officer identified himself or was a law enforcement officer. As used in this subsection, the term ?criminal prosecution? includesL_with probable cause, arresting or detaining in custody or arresEingT?deEainiag?ie such use of force. Section 4. Section 776.041, Florida Statutes, is amended to read: 776.041 Use of force by aggressor.?The justification described in the preceding sections of this chapterI including, bu?_not limited to, the immunity provided for in s. 776.032, is not available to a person'whoi (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or Page 3 of 4 CODING: Werds seriekea are deletions; words underlined are additions. 100 Florida Senate 2013 10 -00557B-13 From: MPHammerIankom Sent: Friday, May 29, 2015 2.13 PM To: Winokur, Thpmas: RoberLTornillony?oridacfoxom; Subject: Testimony to Governor's Task Force Atudmm: Tesltnony of Maxim P. Hammer Testimony of A?omey Eric Friday (Includes testimony on 10-20-Ufe abuses) Jacksonville, Florida Meeting Presentation of Marion Hommor Representing the National Rifle Association of America Page 1 of 21 Good Morning Madame Chairman and Task Force Members Thank you for having me here today. As someone who wasclosely involved with the ?Castle Doctrine? legislation from the beginning, i intend to give you a clear and documentabie report of what really happened and?why. When i have finished my presentation, i will be happy to answer any questions to the best of my ability.- At the conclusion, i hope you will better understand the heart of this issue, because, lessure you, that unless you are one of the legislators, or persons who participated in the actual process, your knowledge of this law and the intent ol the legislature has been colored and discolored by inaccurate media coverage and intentionally deceptive political debate. and real tragedies. Earlier, i asked Mr. Konkua to provide you with a copy of the final version of the bill that passed and some documents that laid out the statistical history of the passage of the law. i felt it was important tor you to know, factually, how the "Castle Doctrine/Stand Your Ground? law passed. particularly hope you had a chance read the actual bill 33-436, including the preamble the ?whereas" clauses at the beginning ?of the bill because that language explains the intent of the bill. The nonJawyer legislators who initially sponsored the bill used legislators with exceptional legal talent to write this legislation. Simmons did extra work on complex issues. Since he was involved with passage of the law on the House side, i'm sure that he will share his knowledge on this issue during your deliberations. Page 3 of 21 Justice Committee. and a former state attorney for the Judicial Circuit apositlon beheld for 7 years. He is the current Chairman of the Florida Democratic Party. Senator Sinfth also figured prominently in the writing of this law on the Senate side. Senator Smith has made it clear. publically, that this law was RIGHT when they passed it and is RIGHT today. partisan support for the legislation. Working With Sen. Peaden, Rep. Baxley handled the bill in the House. defy you to find a more sincere. dedicated and loyal, man of the people than Rep. Baxiey. He demonstrated a profound dedication to protecting the rights of the people and great wisdom, in reaching out to the legal talent around him when needed. You would not find a Page 5 of 21 prosecution and ofle action for exercising lawful sen-defense and use of force; This IeglsIe'IIon merely codified, In statutes, the rIght of self-defense Inst most people bellowed was still In place. In the Senate CrImInaI Justice CommIttee. under the of Sen. Steve Wise and Sen. Rod SmIth -- It passed UNANIMOUSLY (8-0) votes (8-2) ln4 committees- 38 votes cast - aswere In supportand 2 In opposltlon. Further, twenty-two (22) members of these committees Page 6 of 21 were attorneys so no one can say the bill did not have legal scrutiny. It is significant to point out that this bill never had-a dle'eenting vote in the Florida Senate during the entlre 4 1A month process; No one can legitimately claim the bill-wee rushed through the legislature. No one can legitimately claim legislators didn't know what they were voting on. Page 7 of 21 The bill had twenty nine (29) SPONSORS in the Senate - that?s over 2/3 of the Senate - and eight-six (86) SPONSORS in the House that?s over 2/3 of the House. necessary to tormally become a documented SPONSOR of that legislation. Anyone who tries to tell you that legislators didn't know what they were doing is not being truthful. Now that you know the actual documentable facts about passage of the bill and the statistical history of passage, l'd like to share with you some of the overwhelming support for this legislation. The Florida Police Benevolent Association supported it. The Florida Police Chiefs Association supported it Opposed to it. The Florida Anom?y General (Chorus one) ENDORSED as did two other members of the Cabinet - the CFO (Tom Gallagher) and the Page 8 of 21 Opposition came from a few State Attorneys their opposition centered around not wanting to lose their power, their authority, their discretion it was ali about them and clearly not about protecting the rights of innocent people. The Florida Prosecuting Attorneys Association initially opposed the bill because they felt they would lose some of their power and discretion. But eventually, after the bill went through the process. they withdrew their opposition. in fact. the PRINCIPLE of having no guilt for killing or injuring an - intruder or burglar is found in the "Book Exodus 22:2 says ?it the thief, is caught while breaking in, and is struck so that he dice. there shall be no guilt on his account.? Page 9 of 21 to all natural pemons lncludlng the speclfic right to defend llfe and In 2005 the majorlty of people, average law-abiding people bellowed they had a right to defend themselves and protect their families from violent attack and Page 10 of 21 They did net know their constitutional and statutory rights had been usurped. They did not know. people were being arrested, prosecuted and punished for exercising self-defense that was lawful under the Constitution and Florida law. you were criminally attacked that you could go to prison for failing to retr eat for failing to run - before exercising your self-defense rights. How could they know? Page 11 of 21 So, where that come from? It came from JURY INSTRUCTI 0N8. Jury had been used to usurp the Constitution and the law. Fathers. They were NOT lnto law by our LAWMAKERS. Instructions In the 2003'editlon of Florlda's Standard Jury Instructions in Criminal Cases read as follows: Page 12 of 21 On Page 32, Section 3.66) Justi?able Use of Force under the subsection titled Retreat With the admonishment over and they mpond are way the have at nature dictate It Is colt- preurvatlon - they ?ght back. Page 13 of 21 DOES ANYBODY REALLY THINK THAT IS DOES ANYBODY REALLY THINK THAT IS Well I can tell you that In 2005tile Florida Legislature certainly didn?t think it was justice, and took decisive action to stop it. Page 14 of 21 When the system starts to treat criminals like victims and victims like Criminals then it's time for a change. And that is what happened and that's why. the law was changed. homicide. In response to a claim that have risen 250% since passage of the law, he said: Page 15 of 21 it has been my observation that criminals generally do try to escape paying for their crimes. Criminals routinely claim they didn't do it, claim to be innocent, claim they weren?t there, claim it was somebody else, and claim all manner of excuses it should not-surprise anyone that they now have added Stand Your Ground to the list of excuses Page 16 of 21 Page 17 of 21 The quote can be traced to a lot of different citations and origins. it appears that the original quote dates back to the 12th Century and was recited as "it is better and more satisfactory to acquit a thousand Other commentators have echoed the same principle; including Benjamin Franklin who recited it as, ?it is better 100 guilty Persons should escape than that one innocent Person should suffer." The point is, protecting the innocent and the righteous is a principle that is well grounded in hundreds of years of historical legal Page 18 of 21 self-defense. We believe the law is doing what the legislature intended - It is protecting the rights of people who defend themselves against attackers and intruders. process. We are proud to say we worked with legislators from both sides of: the isle to protect sell-defense rights. And although there may be other bodies of law that do not go far enough to protect the innocent and the righteous, we do not see any need to change this law. Page 19 of 21 someone's home or car and winds up dead because of it. Vlcums, not Intruders, should have the law on their side." lesbian, brave or not-so-brave, and regardless of race or religlon, YOUR to'chose whether you ?ght or run in the face of criminal attack has been restored. Page 20 of 21 And no one needs to change that. Page 21 of 21 From: MPHammerlvaolxom Sont: Wednesday July 09, 2014 9:28 PM To: Antonaoci, Pet'er; Hailingswonh, Adam Cc: Mauhon, Diane Subject: SpamScore] Fwd: SCOTT ENACTED SINGLE TERM HIGH OF 12 PRO-GUN LAWS Attachment.- SCOTT ENACTED SINGLE TERM HIGH OF 12 PRO-GUN LAWS From: The News Service of Florida Sent: Wednesday, July 09, 2014 6:19 PM To: Subject; SCOTT ENACTED SINGLE TERM HIGH 0F 12 PRO-GUN LAWS SCOTT ENACTED SINGLE TERM HIGH OF 12 PRO-GUN LAWS By JIM TURNER THE News SERVICE OF THE CAPITAL, July 9, 2014 Gov. Rick Scott appears nearly bulletproof right now In the eyes of the National Ri?e Association. noteethetmore pm-gunbillehevebeenelgnedtnto lawhthepaatfour were than du-lng any other recent elngle gubernatorial . The organization senta message to members applauding Scott for setting the Mord. Since taking of?ce In 2011, Scott hes elgned lnto law 12 gun-related measures backed by the NRA. That total ls nlne more than former Remwcan Gov. Charlie Criet approved wh onloying an equally Republlcan-domhated Leglelatute between 2007 and 2010. Crier ie for the Democratic nomlnetlon to face Scott In the Not/emu: electlom. The total number of Scott's elgm'nge romaine two few than those inked by former Gov. Jeb Bush, who also emxed his name to a one-year record elx pro-gun and pro-huneng mm In 2006. A yeaeanler. Bush had signed the 'etand your ground' law. However, Bush's overall total of 14 new pro-guns laws mme durlng eight years as the omupent of the n. ?Governor Scott supports the Second Mehdmem. and works even} day to enema Florida females are kept safe." spokesmen John Tuppe eeld In an emall. 'Flon'da la et a 43-year crime low. and Governor Scott will review any legleletlon that the Legislature passes and sends to his desk.? The bllevelgned bySoou have'rahged from the '9th contentlom. such as the 'doce vs. docks' law In 2011 that has been on outbyafederaljudge In 2012, tolese controverslal lane foranew concealed carry weapon and'eltowed "tax collector-5' of?ces handle concocted-weapon licence ?The that Gov. Scott has signed will make and have made an enormous difference.? eeld Marlon Hemmer. the powerful lobbyist for the NRA and Uni?ed Sportsmen of Florida. laws will have major-Em pact on law ebtding gun owners. She wasn't as praleowerthyofthe more politically ?axlble Crlet. wholett once with an rating by theNRA and campalgned In 2010 for the us. Senate to have ?never ?tiered in his support for the Second Amendment.? ?For example. he believes we should get military-style assault weapons and high-capacity clips on the Streets and institute tou her ch keep dangerous weapons out of the wrong hands," Kevin Cate. a spokesman for Grist, As of May 31, more were 1.27 conceaiedaiwapon or ?rearm licemee issued in Florida. according to the state Department of Agriculhrre and Consumer Services. The state went over the 1 million mark in Dec. 2012, becoming the Coconut ka Democrat Rep. Jim Waidman. a gun owner who has not received glowing scores from the said the proliferation of pro-gun bills is more about catering to the Repubiican Party's "ultra-right' bane than sound policy. . at defense. Another new law would prevent schoolchildren from being discipiined for simulating gone while playing or for Wearing Clothes that depict fi'eanns. The tie-celled "Warning shot? law :1me this year modified your ground? by Mending immunity to those who threaten to use force in sell-defame. in addition to "doce vs. clocks: a law that restricts how doctors can talk to patients about guns, the 2011 laws signed by Scott included another one that continues to be challenged by cities and counties. That bill established $5,000 fine; for county and city d?'nials who enforce local fireanns restrictions and emmnered the governor to remove local ci?ciais from in June. a Judge sided with Palm Beach County against the provision that the governor could remove a county official from Office for trying to enforce local gun control mice. An NRA-backed measure Scott signed in 2013. Crafted in the wake of20 children and six adulte'being gunned down at Sandy Hook Elementary School in Newtown. Com. ?.38 narroMy-fowsed on making it harder fer the mentaiiy ii to buy ln a letter accompanying the b8! signing, Scott noted that the measure was the product of mental-health and gun-?ghts advocates; he also his history of squortfor gun rig his. - 7/9/14 Involved, invested. or interested in Honda polities? Buym copy of the Palm of 59m 2015 by Dave Reyna tacky! Independent and Indispensable From: MPHemmerlanlcom Sent: Friday, March 20, 2015 11-54 AM To: Miguel. Melinda . Cc: Maleszewskl. Joe: riChard.given5@famu.edu; mbamettafau.edu; cslade@fgcu.edu: roberttaftouc?edu: bmikellQu?edu; robertberryatunfadu; dgulaOadmin.trsfedu: bbowersaiuwfedu Attachments: Police Chiefs Appearance (:3de Calling {a lobbyist a V.P.-of Government Affairs is no different from calling a person who details cars an Auto Maintenance, Engineer. Lobbying and detailing cars are legitimate professions. Attempting to hide what they are with pretentious titles doesn't alter the Job they are actually hired to do. who ppeere before a legislative body to answer questions and provide factual. documentable information regarding the impact legislation would have on the agency. entity or organization. is using taxpayer dollars to provide INFORMATION. who apmare before a legislative body to advocate for oragalnst a legislative bill, is using taxpayer dollars to LOBBY. Only one is appropriate, the other is not. lobby [lob?ee] noun, plural lobbies. 3. a group of persons who Work or conduct a campaign to in?uence members of a legislature to vote according to the group's special interest. verb (used without object), lobbied, lobbying. 4. to solicit or try to in?uence the votes of members of a legislative body. verb (used with object). lobbied, lobbying. 5. to try to in?uence the actions of (public officials, especially legislators). 6. to urge or procure the passage of (a bill). by lobbying. Marlon Hammer 1" ?01?le Slur: APPEARANCE RECORD as s6 'an Topic;__' . Na JobTi?e Lida Address?. 3 . i? one 485a 497/499 MEma? Clay sea-v Speaking: DFor L71 Dimmn Wants Speaking Din Support?, mDMa'l?st ?r madtfais . . . Wm? Representing 4 I All a Appearing at request ofChalr: as Lobbyletregiste /wm1 Legislatune: my? Wm emaynatpennxaapamw mwla?ngtomkmbamatthb mum. Those who do makmaybomdtom?wrmso?mtas manypommsasposma can behemd. 1M3 form I. put ?memo maumlbr this magma. 8-001 "mow Tu: Puma Slum: APPEARAN RECORD 53 l7? 3790818 Address Haida? (0 \?Nlcl Speaking: For Against lnfonmtion WafvaSpe In Support Against (7719 am the would) Repre?en?na 30?} (X3 KW 0N1 Varg? Appearing at request of Chair. Was No Lobbyist registered w?h Legislature: Yes WM: Well!? Swab Tu: Roma 8am: APPEARANCE RECORD :3 I @951?! -BUNm bor(xW) Taplc .5 Ammawm) Name a I 22 22 Jab me 3515;? gr; ELM Addressmm a. $4 43:4 4% PhomfZ/zs ?7943,gg .. 3 .. . $177194 1 HEM 43.3%? madam Speaking: Dqu [26mm Dlnfomnuon maneuv- Din SW DAgaIm . Representing gag? 241g A DfChah': Moredwlm lat 2 _o byistraa Louie we encouragnpubmba?nmn (?ne a?pamana mam. m: farm is marmopum whims-W. 8001110114114) 9 TH: Panamanian APPEARANCE RECORD ammonium Topic 1 Me I Name 35%? Job Tltle Q?hrgf QC . Address?ijuWFK . Phoneu352? Sine! rm . Emu Ishwpe 0P5. eda? 991' 30" Zn): Speaking: DFor Emma! Dinfonna?on Waive Speaking: Din Support DAgalnst Representing 011mg . Appearing at request of Chair: Fl Yes No Lobbyist registered with Legislature: Yes No H. Kerr This form ismaf?bopubllc noon: farms mung, 8-001 (mu/14) FLORIDA SENATE APPEARANCE RECORD 58/; Topic us ca Csmzau ?mm JobTme ?h?f aUme 23% Address art/F 2319/ V5 3222- Ema?__ cry 24a Aaatmt Speaking: DFur mind Ulnfon?atlon Wahra Spaaldhg: Din Support CI (Wm Into the MU.) Representing a '0 A) Lobbyist mgistered with Legislature: Appearing at request 01' Chair: Whileius'a Sonata (rumba to Oncoumgapub?ctaa?mnx time may notpemzlm?pomons wiehbyloqoaakfobahoardatm mating. ?rms who do 381213?me asposwza can beheud. 3-001 Till mm 318??! Phone Email 6? Against _z 4 -. Speaking: For Against Information Waive Speaking: In rt 5 '3 m. ??59me 4 Representing Appaanng at request of Chair. {if} Yes No Lobbyist registered with Leglslature: Whileftha S?nalbb?adl?on bemmoapub?atestlmonu Wm 31293qu bohaar?au?b moshing. Those be board 7711: form I: put oftha public Newfor this meeting. 8-001 THE FLORIDA SEHATI APPEARANCE RECORD SEMI. 3 Topic Mama-1m (WW) Name Ih 1111!! EQLKAIL Job Title AddeW Phon We! . Email my sue an Speaking: DFor DAgaimt Dinfonna?m Elna/am; Waive Speaking: In Suppon (7720 Chat-winner! gamma Into ?re mm.) Representing Lobbyist registered with Legisiaiure: [3 Yea 5 "a Appearing at request ofChafr. Ems Q??o "New? uncanny natpennltal ?new. 7710? Wm mm THE FLORIDA APPEARANCE RECORD uni: tam Ion-Mm? menace? Topic @5315 9N GAMES Armat?amodn (rename) Name Dadib.? Job Cal/{065? P9 Address USP 8? Phone 1 some: Email City . sane 27p . Speaking: UFor DAQainst Dlnfonnation Walve Speaking: [:lln Suppod inst mm inhma?onm m1 Represen?ng . Appearing at request of Chair: My? [3 no Lobbyist registered With Legislature: Yes No 71th muting. 8-001 (1011014) APPEARANCE RECORD y/(a/ll? 'Mowegoem . Torah?MW mmwuvodememeu? Name Eumu bar, 06!; fl - Addmeem?o?QLTo-M?-AJ. Phonej/LKWW/Picmc?. e, 7a.; 213.; man?) 24? klmnon Waive Speak! 3.. In Su [Emmet pea . mad Into are (heard) Represanting ?2 [141? (Add! Appealing at?nequast of Chair: Yes Lobbyist registered with Legislauua: Yes a No Meeting. Mfumpamnsaaposswh unbehomi. This form partof the public mcoldfor 0:!8 muting. 8-001