A Democratic Florida prosecutor suspended by Republican Gov. Ron DeSantis will get another chance to show his political advocacy was protected by the First Amendment and could not be the basis for his removal, a federal appeals court ruled Wednesday.
A three-judge panel of the 11th U.S. Circuit Court of Appeals sent the case involving ex-prosecutor Andrew Warren back to a trial judge in Tallahassee to determine if the governor's suspension was improperly focused on statements Warren signed along with other prosecutors opposing certain legislation to criminalize abortion and gender care.
DeSantis, a candidate for the GOP presidential nomination, cited those advocacy statements in his August 2022 suspension of Warren, whom he replaced with Republican Suzy Lopez as the Tampa-based state attorney. Warren, who had been elected twice, recently announced he would not run again this year.
In his January ruling in Warren's lawsuit, U.S. District Judge Robert Hinkle agreed with Warren's contention that the advocacy statements were protected by the First Amendment but that DeSantis would likely have suspended him anyway for other reasons.
“This is what we’ve been fighting for from the beginning — the protection of democracy. We look forward to returning to the District Court to obtain 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."Andrew Warren
The 11th Circuit vacated that decision and instructed Hinkle to hold further proceedings in which DeSantis would have to show that the suspension was based on issues with Warren's actual performance and policies in office, not just his political advocacy.
“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” Circuit Judge Jill Pryor wrote in the 59-page ruling. “The First Amendment protects his signing the transgender care and abortion statements.”
The ruling adds that “neither statement referred to a specific Florida law. To the contrary, the statements, which addressed national audiences, contained language inapplicable to Florida.”
Warren said in an email that he hopes the ruling leads his return to his position as state attorney.
“This is what we’ve been fighting for from the beginning — the protection of democracy. We look forward to returning to the District Court to obtain 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,” Warren said.
DeSantis Press Secretary Jeremy Redfern said the governor's office adamantly disagrees with the appeals court, contending the ruling sets a “dangerous precedent” that could permit politically-motivated prosecutors to ignore laws they oppose.
“A state prosecutor’s declared commitment to not enforce the laws of this state is not protected by the U.S. Constitution. The federal appeals court is flat wrong to have concluded otherwise,” Redfern said in an email. “It’s disappointing that a federal appellate court would excuse such a blatant violation of that prosecutor’s oath to defend Florida law.”
Last year, the Florida Supreme Court refused to reinstate Warren, saying he had waited too long to file a petition.
Warren’s suspension was the first one made by the Republican governor involving Democratic elected state attorneys. Last year, DeSantis suspended Monique Worrell, who was the state attorney for the Orlando area. Worrell is challenging the decision before the Florida Supreme Court.
