First Amendment

Florida prosecutor ousted by DeSantis gets chance to prove First Amendment claims

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AP Andrew Warren

Andrew Warren attends a press conference shortly after Florida Gov. Ron DeSantis suspended him as state attorney for Hillsborough County. (Photo by Douglas R. Clifford/The Tampa Bay Times via the Associated Press.)

Ousted Hillsborough County, Florida, State Attorney Andrew Warren is getting a chance to seek reinstatement on First Amendment grounds as a result of a federal appeals court’s ruling Wednesday.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled for Warren, a reform prosecutor suspended by Republican Florida Gov. Ron DeSantis, in an opinion by Judge Jill Pryor.

The appeals court said the federal trial judge who ruled against Warren should reconsider whether DeSantis would have removed Warren absent the prosecutor’s protected statements and the governor’s impermissible political considerations.

“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” Pryor wrote in the Jan. 10 decision. “On remand, DeSantis must prove that unprotected activity, such as Warren’s actual performance or his policies, motivated him to suspend Warren.”

Warren had announced Monday that he is not seeking reelection in November because of the “high risk” that DeSantis would once again order his suspension, according to the Tampa Bay Times. He first won election in 2016 on a reform platform, and he was reelected in 2020.

AP DeSantis November 2022(Photo by John Locher/The Associated Press)
Related article from “Florida’s governor suspends another elected prosecutor, citing neglect of duty to prosecute”

DeSantis announced in August 2022 that he was suspending Warren from office without pay for neglect of duty. DeSantis said he objected to Warren’s “woke” positions on abortion and transgender medical care. DeSantis also cited Warren’s policies against prosecution of some minor crimes and noncriminal bike violations, which created a presumption against prosecution that could be overcome by safety concerns.

Warren had signed statements criticizing bills that criminalize medical treatments for transgender people and pledging not to prosecute anyone who seeks or provides banned abortions. Neither statement became policy, however. In a television interview, Warren said he would respect court decisions on the legality of abortion and stressed that prosecution decisions depend on the facts of a case.

U.S. District Judge Robert L. Hinkle of the Northern District of Florida ruled against Warren in January 2023. Hinkle said DeSantis was motivated by six factors when suspending Warren, and two of them were impermissible under the First Amendment: Warren’s political affiliation and his advocacy.

But DeSantis would have suspended Warren based on four permissible factors, and the prosecutor wasn’t entitled to reinstatement, Hinkle concluded.

The 11th Circuit, however, said Warren was protected based on four of the six factors. According to the appeals court, the First Amendment protects Warren’s signing of the transgender care and abortion statements, protects Warren from adverse employment action based on his political affiliation, and protects Warren from actions taken solely for DeSantis’ political benefit.

“If a government actor’s controlling motivation behind an adverse action is gaining political benefit from punishing protected activity, the government actor flouts the First Amendment,” the appeals court said.

Pryor is an appointee of former President Barack Obama. Her opinion was joined by Judge Kevin Newsom, an appointee of former President Donald Trump, and Senior U.S. District Judge Anne Conway of the Middle District of Florida, an appointee of former President George H.W. Bush who was sitting by designation.

Newsom wrote a separate concurrence stressing that the abortion statement was “neither official policy nor on-the-job performance but rather pure speech entitled to First Amendment protection.” The statement, which was issued the day that the U.S. Supreme Court overturned the right to abortion, said criminalizing abortion would end safe abortion, harm victims of sexual abuse, and isolate people from the resources that they need.

“The First Amendment is an inconvenient thing,” Newsom wrote. “It protects expression that some find wrongheaded or offensive or even ridiculous. But for the same reason that the government can’t muzzle so-called ‘conservative’ speech under the guise of preventing on-campus ‘harassment,’ … the state can’t exercise its coercive power to censor so-called ‘woke’ speech with which it disagrees. What’s good for mine is (whether I like it or not) good for thine.”

Hat tip to Bloomberg Law, which covered the decision, along with the Tampa Bay Times.

See also:

“Politics are at play in states seeking to rein in ‘progressive’ prosecutors”

“Florida prosecutor sues governor over suspension, claiming free speech violations”

“Prosecutor removed by Florida governor can’t get hearing in federal or state court”

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