Earlier this week, I had a couple other topics in mind. Depression and mental illness, highlighted by the untimely passing of beloved comic and actor Robin Williams; open season on young black men, highlighted by the killings of a young man in suburban St. Louis – leading to mass unrest – and a man with an air rifle in a Walmart; the militarization of the police, highlighted by the unrest in the St. Louis area. But thinking about these topics made me just want to go hide and pet a kitty, and not come out.

So, let’s talk about some recent court decisions in the gun world. Let’s look at a case deciding whether an online advertising site can be liable for a murder committed by a customer, a case challenging Florida’s law limiting what health care providers can say to patients about firearms, and two cases involving the Second Amendment – one involving Maryland’s “assault weapons” ban and one involving the District of Columbia’s no-issue concealed carry law.

Vesely v. Armslist, LLC: Seventh Circuit affirms district court order dismissing wrongful death complaint against Armslist. The opinion of the court sets forth the factual situation: Demetry Smirnov, a Russian living in Canada, struck up an online relationship with Jitka Vesel. Ms. Vesel subsequently rejected Smirnov’s advances. Smirnov, angry with Ms. Vesel, went on Armslist in search of a firearm. He found a .40 advertised by Benedict Ladera of Seattle, WA. Smirnov went to Seattle to buy the gun. He then returned to Chicago, where Ms. Vesel lived, stalked her, and ultimately murdered her.

Alex Vesely, Jitka Vesel’s brother and the personal representative of her estate, filed suit against Armslist in federal district court. Vesely did not name either Smirnov or Ladera as defendants. Armslist filed a pretrial motion to dismiss for failure to state a claim upon which relief could be granted. The district court granted Armslist’s motion to dismiss, holding that Armslist had no duty to Jitka Vesel and was under no responsibility to control Smirnov’s actions, and therefore Armslist could not be held responsible for Ms. Vesel’s death. Alex Vesely appealed.

The Seventh Circuit affirmed the district court’s order. The legal question was “whether a plaintiff (Ms. Vesel) and a defendant (Armslist) stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” The court noted that “under common law, ‘the universally accepted rule ․ is that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a ‘special relationship’ between the parties.’” Mr. Vesely was unable to show a “special relationship” between his sister and Armslist. He made a “public policy” argument, claiming that a website set up to facilitate firearm sales should be held to a higher standard because guns can be used in crime. But the Seventh Circuit noted that Mr. Vesely still needed to meet the threshold of a special relationship between his sister and Armslist, because of Smirnov’s intervening criminal act, and Mr. Vesely failed to do so.

This case is basically first-year torts. Duty, breach, causation, injury. Did Armslist owe a duty to Jitka Vesel? If so, did Armslist breach that duty? If so, did breach of that duty cause harm to Ms. Vesel? If so, what damages are owed to her estate? No, Armslist didn’t owe a specific duty to Ms. Vesel, and therefore there was no breach of a duty. And even if Armslist owed a duty to her and breached that duty, Demetry Smirnov’s criminal act – stalking and murdering Ms. Vesel – broke the chain of causation.

The interesting aspect of this case is that this case could make it harder for anti-gun activists to sue advertisers and other clearinghouses for firearms transactions.

Wollschlaeger v. Florida: Eleventh Circuit reverses district court order granting an injunction against enforcement of the Florida Firearm Owners Privacy Act, Fla. Stat. §§ 381.026, 456.072, 790.338. The Florida Firearm Owners Privacy Act provides , in relevant part, that licensed health care practitioners and facilities (i) “may not intentionally enter” information concerning a patient’s ownership of firearms into the patient’s medical record that the practitioner knows is “not relevant to the patient’s medical care or safety, or the safety of others,” § 790.338(1); (ii) “shall respect a patient’s right to privacy and should refrain” from inquiring as to whether a patient or his or her family owns firearms, unless the practitioner or facility believes in good faith that the “information is relevant to the patient’s medical care or safety, or the safety of others,” § 790.338(2); (iii) “may not discriminate” against a patient on the basis of firearm ownership, § 790.338(5); and (iv) “should refrain from unnecessarily harassing a patient about firearm ownership,” § 790.338(6). The Act further provides for disciplinary action against providers who violate the Act.

Or, in plain English, the Florida Firearm Owners Privacy Act provides that health care providers can’t talk about firearms with their patients unless they have reason to believe that it is relevant to the patient’s safety or the safety of others, and health care providers can’t refuse to treat gun owners. And if a provider says the “wrong” things, he or she can face fines, suspension, or the loss of his or her license.

Several health care providers sued the State of Florida in federal district court, arguing that the Florida Firearm Owners Privacy Act was an unconstitutional infringement upon their right to freedom of speech and that the Act was overbroad and unconstitutionally vague. The plaintiffs asked for an injunction prohibiting the State from enforcing the Act while the lawsuit proceeded and a permanent injunction. The district court entered a temporary injunction in 2011. The plaintiffs filed a motion for summary judgment, which the district court granted and entered a permanent injunction in 2012, barring the State from enforcing the Act. The State appealed.

The State first argued that Plaintiffs lacked standing to bring suit against the State because no doctors or hospitals had been cited for violating the Act. The Eleventh Circuit disagreed and held that the fear that a health care provider could face sanctions if he or she said anything about firearms to a patient was enough of an injury for Plaintiffs to bring suit.

Having addressed the standing issue, the court then turned to the merits of the case. The discussion revolved around a balancing of the patient’s right to be assured that his or her health care information will not be used improperly versus the provider’s desire to inquire into areas concerning the patient’s lifestyle and well-being. The court came down squarely on the side of the patient. The court noted that the patient may perceive the relationship with his doctor not to be equal, but that the patient may feel powerless vis-à-vis the doctor. The court noted that that is especially so in rural areas, where there are few doctors and where, if a doctor refuses to treat a patient or behaves unethically toward a patient, the patient has few or no other options for care. The court noted the tenets of the Hippocratic Oath and of the American Medical Association’s Declaration of Professional Responsibility, suggesting that the practice of good medicine should not require inquiry into private matters unless such inquiry is necessary for patient care.

The court addressed the plaintiff’s free speech concerns by noting that, if conversation about private matters is not directly necessary to a patient’s care, such conversation is not within the scope of the provider’s duty to a patient (i.e., isn’t part of the practice of medicine).

The court discussed the “close case,” where it is not entirely clear whether a discussion of firearms is necessary to patient care: “Plaintiffs’ ultimate concern, then, must lie in the close case: where it may be debatable whether a firearm inquiry is relevant to a given patient’s care. At one extreme, if a patient’s firearm-ownership status is plainly irrelevant to a patient’s care, it will be clear that the Act bars inquiry. At the other extreme, if good medical care clearly requires inquiry—for example, in case of a suicidal patient—the physician will know that inquiry is relevant and thus not barred. The close case lies somewhere in the middle, where a physician may be forced to act without definitive guidance as to whether or not his or her conduct falls within the bounds of good medical care. This problem, however, is not unique to a physician’s decision regarding the propriety of firearm inquiries under the Act. A physician must continually make decisions regarding what constitutes appropriate care under the relevant professional standards, while running the risk that he or she may be subject to discipline or exposed to malpractice liability for making a poor decision. “ Or in other words, as with all matters within the practice of medicine – or of any other profession – sometimes it’s a judgment call.

The court noted that not all restrictions on professional speech are a violation of the First Amendment. The court noted that states have an interest in regulating the conduct of practitioners of licensed occupations. It finally noted that practitioners can still raise First Amendment defenses to grievances or other proceedings alleging violations of the Act.

To me, this is a difficult case, involving a difficult law. I certainly understand the concerns that led to the passage of this act. But at the same time, I understand the concerns of health care providers – how far can a doctor go in asking about the presence of firearms? OB-GYNs are advised to ask their patients about domestic violence in the home; should OB-GYNs be able to ask whether their patients’ husbands or boyfriends have guns? Should pediatricians be able to ask the parents of their young patients about guns and safe storage when discussing hazards in the home? Where should the line be drawn?

As with all difficult situations, hard cases can lead to bad law. Only time will tell whether Florida has struck the right balance and whether the Eleventh Circuit made the right decision.

Kolbe v. O’Malley: Federal district court holds Maryland’s law banning certain “assault weapons” and “large capacity magazines” constitutional. This act, enacted in the wake of Sandy Hook, bans the sale of certain enumerated rifles and shotguns and of magazines capable of holding more than 10 rounds. Plaintiffs, including individuals, gun shops, and organizations, filed suit against the State of Maryland to seek to enjoin enforcement of the act.
The court, noting the dicta in District of Columbia v. Heller that Second Amendment rights are not limitless, applied a two-part analysis to the plaintiffs’ claim. First, does the challenged law impose a burden on conduct falling within the scope of the Second Amendment’s guarantee? If so, then second, what is the appropriate level of scrutiny?

In determining whether there was a burden on conduct falling within the scope of the Second Amendment, the court used the “common use” test of Heller. The plaintiffs presented evidence of the numbers of “assault weapons” and “large capacity magazines” in use both in Maryland and nationwide: 5 million or more modern sporting rifles and shotguns, and 75 million magazines capable of holding more than 10 rounds. The plaintiffs further presented evidence that modern sporting rifles are often used for self-defense and competitive marksmanship and only rarely used in crime. Despite the plaintiffs’ evidence, however, the court held that modern sporting rifles do not pass the “common use” test. (Note: this is in contrast to Shew v. Malloy, a federal district court decision addressing Connecticut’s “assault weapon” ban, holding that MSRs do pass the “common use” test while nevertheless holding the ban constitutional under the second prong.)

The court, however, assumed for the sake of discussion that the firearms and magazines fell within the protection of the Second Amendment and went on to the second prong: the appropriate level of scrutiny. It applied intermediate scrutiny on the rationale that the Second Amendment’s core right – self-defense in the home – was not affected. (Note: the court had earlier found that MSRs are not commonly used for home defense.) Under intermediate scrutiny, the question is whether the government has a substantial interest that is advanced by the law. The court noted that the government has a substantial interest in promoting public safety. It was convinced that MSRs have “several military-style features making them especially dangerous to law enforcement and civilians,” that they “are designed to cause extensive damage and can fire many rounds in quick succession, from a greater distance and with greater accuracy than many other types of guns—including, in some respects, their automatic counterparts, “ and that “criminals using assault rifles pose a heightened risk to law enforcement” and to civilians. The court thus reached the conclusion that the ban promotes the government’s substantial interest in public safety. (see also Shew v. Malloy, supra.)

So. We have a decision holding that a very popular type of firearm, only very rarely used in crime, doesn’t meet the “common use” test, and that even if it does, a ban on it doesn’t infringe on the Second Amendment. Because Sandy Hook.

Yeah.

Let’s move from that loss to a recent win for the Second Amendment:

Palmer v. District of Columbia: Federal district court holds that the District of Columbia’s ban on concealed carry violates the Second Amendment. Following Illinois’ enactment of a concealed carry licensing process in the wake of Moore v. Madigan, the District is the only jurisdiction continuing to maintain a no-carry policy. While on paper the District ostensibly permits issuance of concealed carry licenses upon meeting certain requirements, the law does not give anyone the authority to actually issue such licenses. Thus, as a practical matter, applicants for a carry license cannot obtain one.

Plaintiffs, most of whom are District residents, filed suit to challenge the constitutionality of the District’s law. I won’t go into an extensive discussion of the rationale used by the court, except to say that the court considered the divergent views held by the Ninth Circuit in Peruta v. County of San Diego and the Seventh Circuit in Moore v. Madigan, holding concealed carry prohibitions to violate the Second Amendment, and the Second Circuit in Kachalsky v. City of Westchester, holding concealed carry limitations constitutional, and found the Peruta and Moore rationale more persuasive.

Note: a few days after issuing its decision, the court issued a 90-day stay to allow the District time to determine its next step. Plaintiffs’ counsel (Alan Gura) had stipulated to the stay on the condition that the District use the time to consider and enact remedial legislation.

This concludes our brief tour of firearms legislation updates. Stay tuned for our next installment, which will take place as events warrant.

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