An appellate court ruled on Wednesday that Florida Gov. Ron DeSantis (R) violated the First Amendment by suspending Democratic prosecutor Andrew Warren for his own political gain.
The U.S. Court of Appeals for the 11th Circuit vacated a previous decision from a federal judge who claimed he did not have the power to reinstate Warren and directed the judge to reconsider his ruling. Although the appellate decision does not ensure Warren’s return to office, it reopens a potential pathway to reinstatement. It also marks a setback for DeSantis, whose presidential campaign has focused on his harsh criminal justice policies and attacks on reform-minded prosecutors.
DeSantis abruptly suspended Warren, then in his second term as Hillsborough County state attorney, in August 2022. In his executive order, DeSantis cited Warren’s policies that created the presumption that certain low-level offenses and cases over noncriminal bike and pedestrian violations would not be prosecuted. He also criticized Warren for joining other prosecutors in signing joint statements pledging not to use their power to criminalize gender-affirming care for transgender youth or abortion. The Brennan Center for Justice, a progressive law and public policy institute, described the suspension as “a brazen move that reeks of antidemocratic principles,” noting that voters in the Tampa-St. Petersburg area had elected Warren to carry out these reforms.
In January 2023, U.S. District Judge Robert Hinkle found that DeSantis had violated Warren’s First Amendment right to free speech but ruled that he did not have the power to reinstate Warren and dismissed the case. Warren appealed, and on Wednesday the appellate court ruled that Hinkle’s reasoning for dismissing the case was flawed.
The appeals court opinion, written by Circuit Judge Jill Pryor, focused on the six factors that Hinkle had identified as DeSantis’ reasons for suspending Warren:
- Warren’s affiliation with the Democratic Party and receiving funding, indirectly, from billionaire Democratic donor George Soros.
- Warren’s advocacy of criminal justice reform, including signing the statements related to abortion and gender-affirming care for transgender youth.
- A single sentence in the abortion statement committing to not prosecute certain abortion cases.
- Warren’s adoption of a “low-level offense policy” and a “bike policy,” which set the presumption of not prosecuting certain violations. With both policies, his office had the authority to choose to prosecute specific cases.
- Warren’s approach to his job and overall performance.
- DeSantis’ anticipated political benefit from suspending a reformist prosecutor.
Hinkle had concluded that First Amendment protections applied only to the first two factors: Warren’s political affiliation and his advocacy for criminal justice reform. He then concluded that DeSantis would have suspended Warren anyway because of the last two factors ― the perceived political benefit and his unhappiness with Warren’s performance — which Hinkle thought were not protected by the First Amendment. Ultimately, Hinkle dismissed the case, ruling that although DeSantis had violated Warren’s First Amendment rights, the governor would have suspended him anyway for reasons that were not protected by the First Amendment.
On Wednesday, the appellate court ruled that First Amendment protections applied more broadly than Hinkle had stated. “We conclude that the district court erred in two ways: first, in concluding that the First Amendment did not protect Warren’s support of a sentence in the advocacy statement about prosecuting abortion cases, and second, in concluding that the First Amendment did not preclude DeSantis from suspending Warren to gain political benefit from bringing down a reform prosecutor,” Pryor wrote.
The appellate court directed the U.S. District Court to consider whether DeSantis would have suspended Warren “based solely on Warren’s performance and the two office policies,” Pryor continued.
“This is what we’ve been fighting for from the beginning — the protection of democracy,” Warren said in a statement. “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.”
DeSantis’ press secretary, Jeremy Redfern, said in a statement that the appellate court’s decision is “an egregious encroachment on state sovereignty” and claimed it will empower prosecutors to ignore laws they dislike.
After DeSantis suspended Warren, he appointed political ally Suzy Lopez, who is now running for a full term. Two days before the 11th Circuit ruling, Warren said he no longer planned to run for reelection because he believed DeSantis would suspend him again. It is not yet clear whether the ruling has changed his calculus.