At the urging of the corporate gun lobby, some states have passed laws that obstruct federal gun safety regulations and infringe upon sensible gun violence prevention policies. The Brady Center has worked, in collaboration with law firms like Morrison and Foerster and Ropes & Gray LLP, to turn the tide against these dangerous regulations. We have represented a wide variety of plaintiffs including physicians groups and law enforcement, to challenge these laws.
Sample Lawsuit: Wollschlaeger et al. v. Florida
In 2011, the Florida legislature passed H.B. 155, a NRA-sponsored bill that drastically limited the freedom of doctors to talk to their patients about the risks of guns in the home. The law subjected health care providers to fines and even loss of their license if they discuss gun safety or record information in a patient’s chart about gun ownership.
The law was heavily criticized by pediatricians and medical organizations, who aptly recognize that guns in the home pose a safety hazard for children. Studies have shown that one-third of U.S. homes with children younger than 18 have a gun, and more than 40 percent of these households store their guns unlocked. According to one study, children aged 5 to 14 years in the United States are 11 times more likely to be killed accidentally with a gun than similarly aged children in other developed countries. Because of these well-documented risks, pediatricians advise parents to keep guns away from children, secured with gun locks, and stored separately from ammunition.
Immediately after the law took effect, the Brady Center, in conjunction with Ropes & Gray and other law firm partners, filed a lawsuit on behalf of a group of individual physicians and medical associations against the state of Florida to block enforcement of the gag rule and have it struck down. The lawsuit argued that the Florida gag rule law violated basic First Amendment rights, both of doctors to share information with their patients and of patients to receive that information. The suit also argues that the vague and undefined descriptions of what kind of conduct was prohibited by the law violated the physician's’ right to due process.
Brady won at the trial court level, first with a preliminary injunction and then a permanent bar on enforcing this unconstitutional law. But Florida appealed. On appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed the district court decision, finding that the Act was a “legitimate regulation of professional conduct.” In February 2016, the 11th Circuit en banc (meaning a larger group of judges) vacated the earlier panel decision and decided to reconsider the case.
On February 16, 2017, the 11th Circuit en banc struck down this Florida law as unconstitutional. The court held that the law unconstitutionally infringed on doctors’ rights to ask about, and counsel their patients on, guns in the home. This ruling is a critical victory for free speech and the fight for public health and safety. Encouraging truthful information and discussions about gun safety is a priority for Brady, and we are very pleased that doctors in Florida have regained their rights to have those conversations with their patients.
Working with the Brady Center as lead counsel for the plaintiffs was Douglas H. Hallward-Driemeier of Ropes & Gray LLP in Washington, D.C. Plaintiffs were also represented by Edward M. Mullins and Hal M. Lucas of Astigarraga Davis Mullins & Grossman, P.A. in Miami, Florida.
Sample Lawsuit: Brady Campaign v. Brownback
In April 2013, Kansas enacted the “Second Amendment Protection Act,” which declares that all guns made and kept in Kansas are exempt from federal gun laws, and makes it a felony to enforce federal laws against such “Made in Kansas” guns. The law also claims to nullify all federal gun laws that violate the Second Amendment.
If enforced, the law could have dire consequences for Kansas residents and public safety. One result is that Brady background checks for “Made in Kansas” guns would be prohibited, allowing them to be sold to convicted felons, domestic abusers and the dangerously mentally ill. The law could also allow the sale of handguns to underage buyers, allow violent domestic abusers to possess guns, and allow manufacturers to produce guns without serial numbers, rendering them untraceable.
Attempts to nullify federal law are not without precedent: numerous Southern states attempted to void federal laws mandating the integration of public schools during the Civil Rights movement in the 1950s. The U.S. Supreme Court held unequivocally that all state nullification of federal law is unconstitutional in 1958.
Shortly after the bill was adopted, U.S. Attorney General Eric Holder wrote a letter to Kansas Governor Sam Brownback to inform him that the law clearly violated the Supremacy Clause of the Constitution, and that federal authorities would continue to enforce all federal gun laws and regulations in Kansas. In response, Kansas Secretary of State Kris Kobach, who coauthored the law and testified before the state legislature on its behalf, issued a statement defying the Attorney General and claiming that Congress has no power to regulate guns made and kept in Kansas. In 2014, it was revealed that Secretary Kobach is a part owner of Minuteman Defense, a recently founded Kansas company that Kobach says will manufacture AR-15 rifles in Kansas under the protection of the new law.
The Brady Center filed suit against the state on behalf of the Brady Campaign and its Kansas membership on July 9, 2014, arguing that the Second Amendment Protection Act is unconstitutional, endangers Kansas residents, and should be struck down.
As soon as word of the suit reached Kansas, Governor Brownback issued a statement vowing to “vigorously defend the rights of Kansans in this litigation.” Brownback incorrectly asserted in his statement that the lawsuit was the work of the Obama administration and that the Brady Center was “[doing] their bidding,” to which Brady Center Legal Action Project Director Jonathan Lowy responded that “we are doing the bidding of Kansans.” The Brady Center was also falsely accused by Kansas Attorney General Derek Schmidt of filing the lawsuit in an election year for political purposes.
On June 5, 2015, a federal trial judge dismissed Brady’s suit, ruling that the plaintiffs do not have standing to bring the action, regardless of its merits. Brady is now considering whether to appeal or refile the suit.
Counsel for the plaintiffs with the Brady Center are Stuart Plunkett and a team from Morrison & Foerster LLP, and James Wyrsch of Wyrsch Hobbs Mirakian, P.C. in Kansas City, MO.