Ropes & Gray, Reed Smith and the Brady Center to Prevent Gun Violence today announced that Florida Gov. Rick Scott has approved an agreement that provides a $1.1 million payment to the firms for their work representing plaintiffs in Wollschlaeger v. Governor of Florida, a pivotal case that declared unconstitutional and permanently barred enforcement of key provisions of the Florida’s Firearm Owners’ Privacy Act (FOPA).
The Florida legislature adopted FOPA at the urging of the NRA in an effort to stop doctors from engaging their patients in discussion about the health risks of firearms in the home and how to minimize those risks. Several associations of Florida doctors challenged the law, along with amicus support from national and local physician and legal groups, and the courts ultimately agreed that the law violated the First Amendment by limiting doctors’ ability to speak with their patients. The fee award marks the final conclusion of the case after six years of litigation in the trial and appellate courts, and underscores that doctors in Florida are free to ask questions of and counsel patients about gun safety.
The fee payment, which required the personal approval of Governor Scott, was agreed to as a compromise of the firms’ application for attorney fees for having helped vindicate the doctors’ constitutional rights.
“Doctors can go back to giving their best advice to patients when it comes to gun safety,” said Douglas Hallward-Driemeier, appellate & Supreme Court partner, Ropes & Gray, who argued before federal and appellate courts on behalf of plaintiffs. “From day one in bringing this case, our commitment has been to protect doctors’ First Amendment rights to ensure the safety of individuals, families and communities in Florida. The successful resolution of the litigation and subsequent fees and costs award are both critical to furthering that goal.”
“I’m proud that the state acted reasonably to put this matter behind it,” said Edward Mullins, office managing partner of Reed Smith’s Miami office. “Our team hopes this award will deter future efforts by the Florida legislature to curtail speech of professionals or anyone on not only this issue but any important matter. Now, more than ever, we need free and open discourse on all topics.”
“What’s critical here is that doctors can continue to counsel their patients to prevent injury or harm from firearms,” said Jonathan Lowy, Director of the Legal Action Project, Brady Center to Prevent Gun Violence. “First Amendment protections are essential to medical professionals, and the outcome in this case underscores the role free speech has in patient counseling.”
Ropes & Gray also announced today that it will commit $100,000 from its award to support a new child safety initiative led by the Brady Center.
“Ropes & Gray has done incredibly impressive work, and the combination of its extraordinary lawyering and dedication to the public interest is a model for all lawyers,” said Avery Gardiner, Brady’s Chief Legal Officer. “Ropes & Gray’s generous donation to Brady will enable us to expand our work to protect children and educate families on the facts about gun safety. We are grateful for Ropes & Gray’s leadership and hope that states across the nation will engage their doctors and citizens in honest, straight-forward discussions about gun safety.”
FOPA, approved by the Florida legislature and signed into law in 2011 by Gov. Scott, attempted to prohibit Florida physicians from making routine inquiries of patients regarding firearm ownership. A six-year court challenge over the provisions of the Act ended in June 2017 when the State of Florida decided not to contest a February 2017 en banc decision handed down from the Eleventh Circuit Court of Appeals that struck down key provisions of FOPA.
In its February decision, the full Eleventh Circuit agreed with an earlier district court decision that three of the law’s provisions—the anti-recording, anti-inquiry and anti-harassment provisions—were content-based restrictions on speech that violated the First Amendment. The court found a fourth provision—the anti-discrimination provision—constitutional, but only after very narrowly construing it to apply only to nonexpressive conduct. The court severed the unconstitutional provisions from the statute.
Any fees awarded to Ropes & Gray and Reed Smith for its work on pro bono cases are used only to pay expenses for future public interest cases in which the firm represents low-income individuals and nonprofit organizations without the means to pay for legal services. Those expenses include the costs of taking depositions, travel for hearings and other third-party expenses related to the firm’s pro bono program. None of the funds will be used to reimburse the firm for the lawyers’ time. The efforts that Reed Smith engaged in to help bring this result were done pro bono without any compensation.
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