How Can Florida Gov. DeSantis Suspend Elected Prosecutor for Refusing to Enforce Certain Criminal Laws?

Gov. Ron DeSantis suspended Andrew Warren, the Tampa-area’s elected state prosecutor (see this executive or this article in the Tampa Bay Times [Lawrence Mower]) for “neglect of duty.” DeSantis’s core stated foundation seemed to be the following:

  1. DeSantis mentioned Warren’s “publicly declared in writing that they will not pursue individuals who offer abortions in contravention of Florida’s penal laws to protect life of the unborn baby.”
  2. DeSantis pointed out Warren having “acted unto himself” by creating a policy during the current term of presumptive enforcement for certain criminal offenses, such as disorderly conduct and intoxication.
  3. DeSantis also spoke out about Warren making a public “pledge.”[d]We will use our discretion not to promote criminalization for gender-affirming health care or transgender people,” however, DeSantis admitted that “the Florida Legislature have not adopted such criminal laws.” DeSantis didn’t claim that the pledge in itself is neglect of duty. He argued, however that it “proves”[s]Warren feels he is able to ignore the Florida Legislature, nullify under his jurisdiction, criminal laws with whom he disagrees”; Warren also believes that Warren has a fundamentally flawed and lawless understanding about his state attorney duties that led him to not enforce his policy regarding “trespassing on a commercial location, disorderly conduct or disorderly intoxication”

It shows how different executive governments are located in each jurisdiction. The President has the power to fire the local U.S. attorney in the federal system. This is because he is the only elected federal executive officer who can oversee the executive officers. Although there are some problems with the specially appointed federal prosecutors, it is not a major feature of this system. On the other side, in many states, prosecutors can be elected directly by voters. Some states have a combination of the two. This is the case under Florida Constitution art. IV, sec. 7:

(a) By executive order stating the grounds …, the governor may suspend from office any state officer not subject to impeachment, … or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. Any officer suspended may be restored by the governor at any moment before being removed.

(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership….

One could argue, however, that neglect of duty doesn’t encompass a prosecutor exercising discretion not enforce specific types of laws. But that’s a matter of state law. And under State v. Allen (Fla. 1937) Prosecutors can be suspend for a categorical refusing to enforce certain laws.

Relator’s suspension is based solely upon “neglect in duty in office,” which is one of the ground listed in Section Fifteen, Article Four. This is supported by the allegation that gambling in Hillsborough County peaked in 1934-35, and that only seven information were filed in 1934 by relators charging with gambling  in said county, and that in 1935, no informations were filed by him charging gambling, that two of the informations filed in 1934 resulted from raids on the Panama Cafe requested by C. Jay Hardee in which gambling was seen carried on by the said C. Jay Hardee and the sheriff and his deputies, that no trials have been held under any of these informations and the reason given therefor by the solicitor was that the evidence in support of them was procured without a search warrant and was consequently not admissible….

Suspension was charged with knowingly allowing gambling, prefer not to be charged therefor. The allegations relating to gambling were certainly in some way related to the charges against the solicitor.

The court ruled that this was sufficient evidence to suspend the suspension. But, it was up to the State Senate to determine whether or not the prosecutor was innocent.

The order of suspension is not subject to our opinion. We are unable to intervene in matters such as this and the possible range of evidence under the charge.

It is likely that this would be the case for a pledge to non-enforce the law, regardless of whether any chance to do so comes up. After all, a prosecutor has an important duty to discourage future criminality, and it won’t happen when he or she pledges to not pursue the crime.

In turn, I do not have an opinion on which relationship the heads of the states (or federal) Executive Branch or individual prosecutors should be in: federal, Florida, or other states. However, Florida law does allow for the governor to suspend prosecutions for refusing or substantially underenforcing laws.