Talahassee – When the National Rifle Association challenged the Florida bill in 2018, then General Pam Bondy was asked to defend the new law as it banned people under the age of 21 from purchasing guns.
Her successor, Ashley Moody, later handled much of her legal defense despite her personal opposition to gun restrictions.
But the new Attorney General James Usmierer said the law would go a different path if it came to the U.S. Supreme Court. He said he wouldn’t follow that.
Uthmeier’s break from his two predecessors raised some questions about his duties. The Florida Senate President said earlier this month he was trying to understand the “impact” of Usmierier’s decision.
At least one critic says it is hypocritical if Gov. Ron Desantis did not punish Uthmeier for not defending state law when Desantis punished two state lawyers for what Desantis deemed a failure to act.
Uthmeier is far from the first attorney general who has chosen to oppose the defense of state law. Here’s what Florida needs to be an attorney general, where gun laws themselves stand, and how it took over with state lawyers:
What are the requirements for Florida?
The work of the Attorney General is not the same in all 50 states. Each state has its own constitution, statute, and court precedent.
In Florida, the statute states that the Attorney General will “attend and attend all lawsuits or prosecutions on behalf of the state,” but the Attorney General does not say that he must defend all state laws.
Neil Devins, a law professor at William & Mary, co-authored a Yale Law Journal report in 2015 on how different states handled their obligations to defend the law.
Devins said he doesn’t believe Florida law requires Usemier to defend the law.
In fact, almost a century ago, a Florida court ruled that if the Attorney General believes the decree is unconstitutional, it is their duty to challenge them to resolve the question of whether it is valid or not, according to a 2018 investigation by the National Association of Attorney Generals.
Uthmeier’s office did not respond to multiple requests for comments on his justification not to defend the law. On social media, he said he believes the law is unconstitutional.
“Men and women old enough to fight and die for our country should be able to buy firearms to protect themselves and their families,” Uthmeier said in X.
However, the Florida Attorney General’s own website states that the Attorney General “advocates the constitutionality of legislation formally enacted by Congress.”
House Democratic leader Fentris Driskel said Usmeyer’s “work is to defend Florida law,” and that if he doesn’t defend current gun restrictions, it would “deny his obligations.”
What happened across the country?
There are multiple instances in the history of both Democrats and Republicans in the United States that have chosen not to comply with state law. The issue became particularly widespread when several state attorney generals refused to comply with the state’s ban on same-sex marriage.
Attorney General Eric Holder, then-U.S. Attorney General, supported the decision, saying that if the law touches on core constitutional issues, scrutiny should be applied when deciding whether the Attorney General would defend it.
When Florida’s own ban on same-sex marriage was in court, Bondy defended it and rejected criticism, saying it was her “duty as attorney general.”
Devins pointed out that most attorney generals have been elected and there may be higher political aspirations. He said when they chose to oppose the defense of the law, it could be a political choice along with what they truly believe in.
“If you see one of them refuses to protect, it’s going to be a highly politically salience,” Devins said.
What laws do Uthmeier not defend?
In 2018, Florida changed the law to ban a 19-year-old from purchasing firearms under the age of 21 after using legally purchased AR-15-style weapons to kill 17 students and teachers.
The federal court of appeals recently upheld the law. It is unclear whether the Florida case will move to the U.S. Supreme Court.
And if the Florida Legislature decides to revoke the law by reducing the age at which he buys a rifle to 18 again, that could be irrelevant. Federal law already prohibits people under the age of 21 to purchase handguns.
The Florida home on Wednesday voted for the third year in a row to reverse age restrictions. But Senate President R-Wauchula Ben Albritton is reluctant to say whether he supports change or not. Recently, when asked about his stance, Alburitt spoke of a tour of the Parkland building where the massacre took place, which made me cry.
He and House Speaker Daniel Perez, R-Miami, voted for a 2018 law that would create gun restrictions.
Saikrishna Prakash, a law professor at the University of Virginia and co-author of the 2015 Yale Law Journal Report, said lawmakers who pass laws are often not lawmakers who address its legal challenges.
“Sometimes, Congress doesn’t care that the law is not defended because it doesn’t like the law either,” Prakash said.
Prakash said he doesn’t think there’s a clear set of measures someone could use to force the Attorney General to take different actions, in addition to the threat of possible blasts each.
Last week, Albritton said he worked with staff and lawyers to understand “what the impact is.”
“I have respect for all branches of the government and have not made any decisions about it at this point,” he said.
What about the deleted prosecutors?
Democratic leader Driskell said DeSantis would not attempt to remove or punish Usmyer for his statement, but he said it was “hypocrisy and damage to the people of Florida.”
Desantis’s office did not respond when asked if he thought Uthmeier was acting properly by refusing to adhere to Florida law. Instead, he pointed out the governor’s comments at a news event where he spoke about his support for loosening Florida’s gun laws.
When DeSantis stopped Hillsboro State Attorney Andrew Warren in 2022, he cited a statement in part that signed Warren’s pledge not to prosecute abortion or transgender health law violations. Warren’s defense said these statements were protected by First Amendment speech.
There was debate at the federal trial as to whether Warren’s statement constituted a comprehensive policy that would not actually be charged. The federal judge thought they weren’t a blanket policy and that DeSantis punished Warren for his speech.
The appeals court asked the case to be retreated and reconsidered federal judges whether DeSantis suspended Warren based on his performance and policies relating to prosecuting low-level misdemeanors.
However, the court never ruled on it as Warren’s case filed a lawsuit when he lost his reelection.
