Judge Rules DeSantis Was Wrong, but Upholds Prosecutor’s Suspension

MIAMI — Gov. Ron DeSantis of Florida violated the state’s Constitution when he removed Tampa’s top prosecutor from office, but even so, the suspension cannot be overturned by a federal court, a judge ruled on Friday. The judge, Robert L. Hinkle of the U.S. District Court in Tallahassee, dismissed a petition by the prosecutor, Andrew H. Warren, to be reinstated to his elected position.

In a 59-page ruling, Judge Hinkle found that the Republican governor’s suspension of Mr. Warren, a Democrat, violated the prosecutor’s free speech rights. The chief reason that Mr. DeSantis cited for removing Mr. Warren from office in August was that Mr. Warren had signed a statement in June against criminalizing abortion.

The governor also cited other justifications for the suspension that do not violate the First Amendment, but do violate the Florida Constitution, Judge Hinkle wrote. “A governor cannot properly suspend a state attorney based on policy differences,” he said in a written order on Friday, nearly two months after a fast-tracked three-day trial in November.

The judge found, however, that he could not order Mr. Warren’s reinstatement, because it was a matter of state law and not federal law.

The Eleventh Amendment to the U.S. Constitution, he wrote, “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.”

Gov. Ron DeSantis and His Administration

  • Reshaping Florida: Gov. Ron DeSantis, a Republican, has turned the swing state into a right-wing laboratory by leaning into cultural battles.
  • 2024 Speculation: Mr. DeSantis opened his second term as Florida’s governor with a speech that subtly signaled his long-rumored ambitions for the White House.
  • Avoiding the Press: The governor easily won re-election despite little engagement with the mainstream media, but his strategy would face a big test if he pursued a presidential bid.
  • Latino Evangelicals: The governor has courted Hispanic evangelical Christians assiduously as his national profile has risen. They could be a decisive constituency in a possible showdown with former President Donald J. Trump in 2024.

The ruling sharply rebuked Mr. DeSantis, but nevertheless handed him the sort of legal victory that he frequently touts to his supporters. He has ousted elected officials at a more aggressive pace than his predecessors, replacing them with Republicans more aligned with his own policies.

Mr. DeSantis, who won re-election last year in a rout, boasted during the campaign about suspending Mr. Warren for what he called incompetence and neglect of duty, largely over Mr. Warren’s position against prosecuting people who obtain or provide abortions. In April, Mr. DeSantis signed into law a ban on abortion after 15 weeks of pregnancy.

In suspending Mr. Warren, Mr. DeSantis also cited Mr. Warren’s policies on how to prosecute minor offenses and on a law enforcement practice criticized as “biking while Black,” in which Tampa police officers issued tickets to bicyclists, most of whom were Black, for resisting arrest without violence.

Andrew Warren spoke outside of the federal courthouse following a hearing on Monday, Sept. 19, 2022, in Tallahassee, Fla.Credit…Chasity Maynard/Tallahassee Democrat, via Associated Press

Neither the governor’s office nor a spokesman for Mr. Warren immediately responded to requests for comment on the federal judge’s ruling Friday.

Judge Hinkle characterized Mr. Warren’s suspension as a politically motivated attempt to oust a progressive prosecutor who was twice elected by Hillsborough County voters.

“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,” Judge Hinkle concluded.

He all but urged Mr. DeSantis to reinstate Mr. Warren himself, calling his reasons to justify it “false” and his administration’s efforts to properly support them paltry.

“If the facts matter, the governor can simply rescind the suspension,” he wrote. “If he does not do so, it will be doubly clear that the alleged nonprosecution policies were not the real motivation for the suspension.”

Mr. DeSantis replaced Mr. Warren with Judge Susan Lopez of Hillsborough County, whom the governor had appointed to the bench in 2021.

During the trial in November, Judge Hinkle sounded dissatisfied with how Mr. Warren had been treated and how the DeSantis administration had acted. At the same time, though, he questioned whether all the reasons Mr. DeSantis cited for the suspension rose to a violation of Mr. Warren’s First Amendment rights.

One of Mr. Warren’s lawyers, David Andrew O’Neil, argued at trial that the governor’s staff should at least have asked the prosecutor to clarify his positions before deciding to suspend him.

Under Florida law, a governor can suspend state officials for wrongdoing that includes neglect of duty, incompetence, malfeasance, drunkenness or commission of a felony. Lawyers for Mr. DeSantis argued that the governor acted within his power in suspending Mr. Warren, who was in his second term as the state attorney for the 13th Judicial Circuit, because Mr. Warren had issued “blanket” policies against prosecuting minor crimes. Mr. Warren, who testified in the trial on Nov. 29, said his policies were not blanket refusals but rather were meant to give prosecutors discretion over which cases to pursue. Judge Hinkle found that Mr. Warren had not imposed blanket policies.

Mr. Warren also argued in the case that his suspension, without pay, was politically motivated. The prosecutor had publicly disagreed with Mr. DeSantis in the past, and had signed an earlier pledge not to criminalize transgender people and gender-affirming health care.

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