A Fake Constitutional Showdown: 'Docs v. Glocks' Among Cases Law Students Weigh in On

Recent Case Among 3 in Which Clinic Students Filed Amicus Briefs on the Prevailing Sides
UVA Law First Amendment Clinic

Amicus-writing is among the skills students learn in the UVA Law First Amendment Clinic.

March 15, 2017

The Sunshine State's recent attempt to gag doctors from advising patients that guns may be hazardous to their health — a rule an appeals court ultimately shot down Feb. 16 — is one of a number of controversial cases students in the First Amendment Clinic at the University of Virginia School of Law have been weighing in on through amicus briefs.

The briefs are submitted by non-litigants and offer informed support for one side in a case. The year-long clinic allows students to gain practical experience in legal research and writing on timely free speech and press cases.

"Writing amicus briefs helped me refine my practical research and writing skills, which was valuable coming into my clerkship," said Daniel Caldera, a 2016 graduate who now clerks for the United States District Court for the Western District of Tennessee.

In three appellate decisions handed down in February by the federal courts, the clinic filed amicus arguments that ended up being on the prevailing sides of each. The clinic is taught by First Amendment experts Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, and Joshua Wheeler, director of the Thomas Jefferson Center for the Protection of Free Expression. Brown called the February decisions "the trifecta."

In Wollschlaeger v. Governor of Florida, dubbed in the media as "Docs v. Glocks," the U.S. 11th Circuit Court of Appeals overturned an earlier decision that upheld the Florida law. While the decision only applies to a portion of the legislation, the court said doctors can't be restricted from asking patients questions about their firearms ownership and habits.

The amicus was important because it pointed out the false assumption that was being made — that two constitutional rights were being pitted against each other.

"Our strategy, as I recall, was, through the lens of the compelling interest test, to show that the Florida law at issue did not advance or protect Second Amendment rights in any meaningful way by restricting what doctors could say to their patients," Caldera said. "Even though the case was nicknamed 'Docs v. Glocks' in the media, our goal was to show that this case did not require the court to choose between the First and Second Amendments."

The Thomas Jefferson Center also awarded a "Jefferson Muzzle," one of its annual satirical honors, to Gov. Rick Scott and the Florida legislature for passing the doctor speech ban in the first place.

The clinic students, in conjunction with the Reporters Committee, co-wrote two other amicus briefs that were consistent with the eventual appellate court decisions. The cases concerned press access to video of an officer-involved shooting (in Mendez v. Gardena) and a citizen's right to publicly criticize a physician's practice (in Tobinick v. Novella).

"One important strategy across all of the amicus briefs authored and submitted by the First Amendment Clinic was finding a First Amendment perspective to bring to the case, but also trying to make an argument or a point that was not already being made by the parties or that other amici were better suited to make," Caldera said. 

Although the latter two cases were won on procedural grounds, the committee said the briefs were in line with the tenor of the decisions.

For example, in Mendez v. Gardena, the Los Angeles Times sued and won for access to the city of Gardena's police video at the district court level, and the court decided the city hadn't shown there was sufficient reason to stay the decision, pending appeal. The clinic filed an amicus brief when the appeal moved forward, siding with the Times that the district judge was correct in denying a stay. The Ninth Circuit ultimately held that the appeal was moot, since the Times had already received the video.

"So while they didn't directly rule on our issue, they did not buy the city's argument that this needed to be addressed," said Gregg Leslie, legal defense director for the Reporters Committee.

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