DeSantis, Suspended Prosecutor Spotlight Bigger Discretion Fight

Florida Gov. Ron DeSantis’ court fight with a suspended state attorney who refused to enforce anti-abortion laws will serve as a high-profile legal test as local prosecutors face more scrutiny over cases they decline to bring.

Andrew Warren’s lawsuit over the governor’s decision is set for oral arguments May 2 before the US Court of Appeals for the Eleventh Circuit. The elected Democratic prosecutor argues the Republican governor violated his First Amendment rights in suspending him for speech and related conduct that were political in nature.

Similar tensions between prosecutors and state officials are playing out across the country, driven by a range of issues beyond just abortion restrictions. Republican-majority state legislatures including Georgia’s statehouse have taken action to rein in progressive-leaning prosecutors who show leniency or opt not to enforce crimes such as personal possession of marijuana or low-level shoplifting.

Texas and other states are considering similar legislation this year, while Philadelphia District Attorney Larry Krasner continues to challenge his impeachment last year when the Pennsylvania legislature’s GOP majority accused him of failing to address violent crime.

The expanding scrutiny is driven partly by state officials’ concerns about crime, and partly by political considerations, according to Carissa Byrne Hessick, a professor focused on criminal law at the University of North Carolina at Chapel Hill.

“Prosecutors and these progressive prosecutors, in particular, have become part of the culture war,” Hessick said.

For the governors and state legislators challenging prosecutors publicly, “it’s a convenient thing for them to do to sort of burnish their law-and-order credentials,” she said.

In Warren’s case against DeSantis, the suspended Tampa-area prosecutor is asking the Eleventh Circuit to revive his lawsuit after a federal district court dismissed it in January. That lower court partially agreed with Warren that the governor had violated the Florida state and US constitutions, but found it didn’t have authority to reverse the governor’s decision. Warren also has petitioned the Florida Supreme Court to order him reinstated.

Free Speech, Prosecutor Discretion

The Eleventh Circuit case hinges largely on how courts apply First Amendment protections for government employees, but also strikes at the issue of prosecutorial discretion.

Warren argues he was within his authority as a prosecutor to make decisions prioritizing which kinds of cases to pursue and allocating the limited resources of the prosecutor’s office. DeSantis argues Warren’s blanket refusal to enforce an entire category of Florida statutes amounts to a veto of that law within the prosecutor’s district, overriding the role of the state legislature.

“An executive officer is someone who executes the laws. They don’t make them. That’s the oath that we take as executive officers, as prosecutors,” Ohio Attorney General Dave Yost (R) said by phone. Yost’s office led an amicus brief signed by 15 states supporting DeSantis’ position in the Eleventh Circuit.

While the First Amendment protects speech, it doesn’t shield a government employee from discipline if they announce they won’t do their job, he added.

“Just as the First Amendment does not protect a soldier who advocates disobedience to the chain of command, the First Amendment does not protect a prosecutor who promises to veto a law by inaction,” Yost said. “That’s the bridge too far.”

Warren was one of more than 100 state attorneys, prosecutors, and AGs who signed a statement vowing not to prosecute abortions. Local prosecutors’ network Fair and Just Prosecution released the statement June 24, 2022, the same day the US Supreme Court published its opinion in Dobbs v. Jackson Women’s Health, overturning the constitutional right to abortion. Those who signed the statement said they had a responsibility to “refrain from using limited criminal legal system resources to criminalize personal medical decisions.”

That decision, among others by Warren to take a “less punitive, less draconian” approach to law enforcement, fell squarely within his prosecutorial discretion and didn’t give DeSantis grounds to suspend him, said Joshua Rosenthal, an attorney with the legal advocacy group Public Rights Project, which filed an amicus brief supporting Warren.

The district court “found that Ron DeSantis removed Andrew Warren because of his statements about abortion, about gender-affirming care, and his purported affiliation with George Soros and his affiliation with the Democratic Party,” Rosenthal said by phone. “All of those are clearly First Amendment activities.”

The increasing scrutiny against prosecutors includes Georgia legislation headed to Gov. Brian Kemp (R) to create a prosecutor oversight commission and a slew of Texas bills, including one that will make adopting blanket nonenforcement policies an offense for which prosecutors can be removed from office.

There’s historically been a misconception that state attorneys are akin to clerks or administrative staff, essentially handling the paperwork to pursue criminal charges without much decision-making authority, Hessick said.

The fact that they don’t bring charges in every case “is incredibly well established and it happens every single day, probably in every prosecutor’s office across the country,” she said. “Most people in the public don’t know that, they don’t appreciate that.”

The case is Warren v. DeSantis, 11th Cir., No. 23-10459, arguments scheduled 5/2/23