A federal appeals court has breathed new life into a lawsuit filed by a Hillsborough County prosecutor who was suspended by Gov. Ron DeSantis over statements related to abortion issues and trans gender health care, as well as his prosecution policies.
A three-judge panel of the 11th Circuit Court of Appeals decided Jan. 10 that a lower court erred in applying First Amendment protections in the case of suspended State Attorney Andrew Warren. In the wake of his signing policy statements advocating against prosecutions related to abortion-related offenses and transgender health care, Warren was suspended and accused of “incompetence” and failure to carry out his duties.
DeSantis has until Thursday to appeal the decision to the full 11th Circuit. Warren has been seeking reinstatement to his elected position, arguing that the First Amendment protected activities that the governor identified as reasons for the suspension.
A federal district court concluded that six factors motivated DeSantis to suspend the prosecutor and that only two of those reasons were protected speech under the First Amendment. The governor would have suspended Warren even without DeSantis citing the protected activities in his executive order suspending Warren, the district court said.
But the 11th Circuit disagreed, saying that free-speech protections covered more of Warren’s activities than the district court believed.
“The district court erred in concluding that the First Amendment did not protect the activities behind two of the other factors,” the appeals court opinion states, adding that the case should be sent back to the district court to see whether DeSantis would have suspended Warren based only on the unprotected activities.
In justifying his suspension, DeSantis cited Warren’s decision to put in place a “non-prosecution presumption” in cases resulting from noncriminal bike and pedestrian violations. Warren was also criticized for a policy that would allow the office to “presumptively not prosecute” offenses that result in sentences with a maximum of 60 days, according to the appeals court ruling.
“This was a huge victory for democracy, free speech and rule of law,” Warren told the Florida Record. “This decision shows we were right all along.”
Warren argues that the governor broke the law in suspending him and that four judges have now concluded that the suspension was a violation of federal law.
“From the beginning, I’ve said that this case was about more than just me and the position of state attorney,” he said. “This is about making sure that no one, not even the governor, is above the law and that elections have consequences. The governor can’t violate people’s constitutional rights to promote his political agenda.”
Warren said he hoped to see the case moved back to Tallahassee as soon as possible to resolve the legal issues and ensure that the rights of voters are upheld.
Prior to the appeals court ruling, Warren said he would not run again for state attorney because the governor would likely find another reason to bounce him out of office again.
The First Amendment protected Warren from signing transgender care and abortion statements in coordination with a nonprofit group, Fair and Just Prosecution, according to the appeals court ruling. In addition, the statements were outside Warren’s workplace duties, the court concluded.
“He employed no workplace resources and never marshaled the statements through his process for creating policies,” the appeals court opinion says.