Florida - Friday January 20, 2023: A federal judge ruled Friday that Florida Gov. Ron DeSantis violated the First Amendment and the Florida Constitution by removing an elected state prosecutor, but that the federal courts lack the power to reinstate him.
In an order dismissing the case, U.S. District Judge Robert Hinkle wrote that federal law prevents him from returning elected prosecutor Andrew Warren to office in a lawsuit that centered on state law.
DeSantis suspended Warren last year over the elected prosecutor’s signing of statements that said he would not pursue criminal charges against seekers or providers of abortion or gender transition treatments, as well as policies about not charging people with some minor crimes.
Warren — a twice-elected, Democratic state attorney in Hillsborough County, which includes Tampa — sued the governor in federal court to get his job back.
In testimony, Warren argued that he was suspended over his personal political positions on abortion and transgender issues. He said his office applied prosecutorial discretion over whether to bring charges in all cases, considering public safety and other matters.
Judge Hinkle's decision largely sides with Warren's arguments but finds that the case is effectively a state matter that cannot be resolved by a federal judge.
“Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr. Warren had blanket policies not to prosecute certain kinds of cases. The allegation was false," Hinkle wrote. “Mr. Warren’s well established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case.”
He added: “But the Eleventh Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law.”
DeSantis' office did not immediately return an emailed request for comment.
The governor had accused Warren of incompetence and neglect of duty, arguing that the prosecutor was picking and choosing which laws to enforce, citing in his executive order the non-prosecution of crimes such as “trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution.”
DeSantis' executive order also cited Warren's endorsement of statements from prosecutors across the country pledging to not bring criminal charges against people seeking, providing or supporting abortion access — and opposed the criminalization of gender transition treatments.
Florida has a 15-week abortion ban that took effect last year. The state does not have a law criminalizing gender transition treatments. Warren said his office had not received any criminal referrals related to the new abortion law or gender transition treatments.
The suspension positioned DeSantis, a potential 2024 GOP presidential candidate, at the forefront of a wave of Republican opposition to progressive prosecutors who exercise discretion over whether to charge people with what they deem to be low-level offenses.
Statement from Andrew Warren Following Ruling
TAMPA, FL (January 20, 2023) – Andrew Warren gave the statement below to reporters following today’s ruling where a federal judge said Governor Ron DeSantis’ suspension of Warren “violated the Florida Constitution” and was “a violation of the First Amendment.”
The trial was a search for the truth, and over the past five months the truth has come out. The truth is that Gov. DeSantis abused his power and suspended me not in the pursuit of justice but in the pursuit of politics. The truth is that this suspension was never about the job that I did. As the judge wrote, quote, “The actual facts, whether Mr. Warren actually had any blanket non-prosecution policies, did not matter.’’
The suspension was always a political stunt, a cheap trick to add one more misleading line to the governor’s stump speech. The truth is, for the past six years I’ve been a pragmatic, forward-looking state attorney, both tough and smart on crime, representing my own vision of criminal justice and the purple county that I so proudly serve. But DeSantis and his enablers didn’t care about the truth. They didn’t care about our office’s success. They didn’t care about the safety of our community, and they didn’t care about the will of the voters. They cared about scoring political points through a political stunt. Period.
From the day I was suspended, I’ve said that the suspension was illegal. And although a judge said he couldn’t put me back into the office to which I was twice elected, a federal judge confirmed that the suspension was illegal. The judge concluded that the governor violated federal law and state law. He violated my First Amendment rights under the U.S. Constitution by suspending me for speaking out on issues of public importance. He violated my First Amendment rights by suspending me because I am a Democrat. He violated the Florida Constitution by suspending me not because I had done anything wrong but because my vision as state attorney doesn’t fit with his political agenda. As the judge wrote, and I quote, “The record includes not a hint of misconduct by Mr. Warren. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close.’’
From the beginning, I have said that this case was bigger than just me. The idea that a governor can break federal and state law to suspend an elected official should send shivers down the spine of anyone who cares about free speech, the integrity of our elections or the rule of law, three core principles on which our democracy is built. When the governor announced the suspension, he stood up and proclaimed that our government is a government of laws, not a government of men. I couldn’t agree more. The judge wrote, quote, “If the facts matter. the governor can simply rescind the suspension.’’
Let’s see if the governor actually believes in the rule of law. Let’s see if the governor actually is a man of his word. Let’s see what kind of man the governor actually is. The governor is supposed to represent all Floridians. And if he wants to represent all Americans, then this is a golden opportunity for him to show our country what kind of man he truly is. This is not over. Thank you.