A federal appeals court has reinstated a First Amendment lawsuit filed by former Tampa-area reform prosecutor Andrew Warren against Florida Gov. Ron DeSantis, and now the DeSantis administration will have to argue that Warren’s job performance, not his ideology, was the controlling factor behind Warren’s removal from office.
The U.S. Court of Appeals for the 11th Circuit ruled today that a lower district court erred when it dismissed Warren’s lawsuit last January despite finding that DeSantis violated Warren’s First Amendment rights by suspending him from office for protected speech.
“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” U.S. Circuit Judge Jill Pryor wrote. “On remand, DeSantis must prove that unprotected activity, such as Warren’s actual performance or his policies, motivated him to suspend Warren.”
Last January, U.S. District Judge for the Northern District of Florida Robert Hinkle sharply criticized the DeSantis administration’s partisan motivations for suspending Warren, formerly the Hillsborough County State Attorney and one of the most prominent progressive prosecutors in the state.
“In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor—a prosecutor whose performance did not match the Governor’s law-and-order agenda—and the political benefit that would result,” Hinkle wrote in his order. “The actual facts—whether Mr. Warren actually had any blanket nonprosecution policies—did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution.”
But although Hinkle found that the DeSantis administration’s reasons for removing Warren were specious and included protected First Amendment speech—such as being affiliated with the Democratic Party progressive megadonor George Soros—he dismissed the lawsuit on the grounds that DeSantis would have removed Warren anyway for other unprotected conduct.
DeSantis suspended Warren in August of 2022 for alleged neglect of duty after Warren signed letters saying he would not enforce state laws restricting abortion or transition-related medical care to transgender minors. The DeSantis administration cited those letters, as well as Warren’s non-prosecution policies for certain low-level crimes, such as “resisting without violence” charges—an offense that had become derisively known as “biking while black” because it was overwhelmingly applied against black bicyclists. The move came after the Justice Department released a 2016 report that found that 75 percent of bicyclists stopped by Tampa police were black.
Warren filed a federal lawsuit shortly after claiming the ouster violated his First and 14th Amendment rights.
The 11th Circuit found that Warren’s signing of letters was protected First Amendment activity. It also found that the record established during the bench trial in Warren’s lawsuit showed that the state investigation into Warren’s office was sloppy and minimal at best; DeSantis’ overriding motivation was the political benefit of ousting an outspoken prosecutor with a contrary ideology.
“The district court’s findings show that DeSantis never suspended Warren because DeSantis disagreed with his actual office policies or case decisions,” Pryor wrote.
In an emailed statement to Reason, DeSantis’ press secretary Jeremy Redfern said the 11th Circuit opinion “sets a dangerous precedent, and it will empower the chaos we see across the United States as politically motivated prosecutors will continue to ignore criminal laws they don’t like and put our communities at risk.”
“A state prosecutor’s declared commitment to not enforce the laws of this state is not protected by the U.S. Constitution,” Redfern said. “The federal appeals court is flat wrong to have concluded otherwise.”
Redfern said the governor’s office is still reviewing the decision, “but we will ensure that Florida’s sovereignty and constitution are respected.”
On the website X, formerly known as Twitter, Warren responded to the 11th Circuit ruling:
“This is what we’ve been fighting for from the beginning—the protection of democracy,” Warren wrote. “We look forward to returning to the district court for the relief that has been denied to me and all the voters of Hillsborough County for 17 months: reinstating the person elected by the voters.”
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