Andrew Warren, suspended by Gov. Ron DeSantis, holds a news conference in Tallahassee on Aug. 17, 2022. Flanking him is his attorney, J Cabou. Credit: Michael Moline
Elected Hillsborough County State Attorney Andrew Warren took Gov. Ron DeSantis to federal court Wednesday, alleging that in suspending him from office the governor violated Warren’s First Amendment right to disagree with the state’s chief executive on policy.
In a 28-page complaint filed in the U.S. District Court for the Northern District of Florida, Warren also alleges that DeSantis exceeded his authority under the Florida Constitution by essentially concocting alleged grounds of “incompetence” and “neglect of duty.”
“These terms have plain meanings that the courts have defined and that are not malleable at the whim of DeSantis,” the document states.
The lawsuit asks the court to declare DeSantis’ executive order suspending Warren unconstitutional and to order the governor to reinstate him. It also asks the court to block any further retaliation against Warren and to order payment of his court costs and attorney fees.
During a news conference in Tallahassee Wednesday morning, Warren denounced DeSantis’ “blatant abuse of power.”
“There is so much more at stake here then my job. Ron DeSantis is hoping to get away with overturning a fair election, throwing out the votes of hundreds of thousands of Floridians. By challenging this illegal abuse of power, we can make sure that no governor can toss out the results of an election because he doesn’t like the outcome,” Warren said.
The complaint notes that Warren’s replacement, former Judge Susan Lopez, has already reversed many of his policies and shaken up his office staff.
Warren was first elected at Hillsborough’s top prosecutor in 2016 and reelected in 2020.
“Without warning, I was forced out of my office by an armed deputy, removed from my elected position, and replaced by a Ron DeSantis accomplice,” Warren said.
“The governor’s authority is not unlimited. He can disagree with my political opinions; he can disagree with my criminal justice philosophy; he can even disagree with my unwavering commitment to public safety, fairness, and justice. And he can do all those things because he’s protected by the First Amendment. But the First Amendment doesn’t just protect him. It protects everyone, even those of us he disagrees with.”
The complaint in Warren v. DeSantis, which has been assigned to U.S. District Judge Robert Hinkle, invokes both the First Amendment and the Florida Constitution, which holds that a governor’s removal power against a constitutional officer like a state attorney “applies only in the most extraordinary circumstances,” as defined by the courts.
It notes that the U.S. Supreme Court declared in 1966 that elected officials should “be given the widest latitude to express their views on issues of policy” and subsequently that the First Amendment protects them from “retaliatory actions after the fact for having engaged in protected speech.”
In suspending Warren on Aug. 4, subject to a vote by the Florida Senate, the governor pointed to Warren’s signature along with other progressive prosecutors around the country on a 2021 letter promising “to use our discretion and not promote the criminalization of gender-affirming health care or transgender people,” and to a similar letter this year promising to “exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”
Warren’s complaint notes that no such case has come before him on either topic.
DeSantis also criticized Warren for imposing a “presumptive nonenforcement” for some crimes, arguing that “is not consistent with the role of a prosecutor. Yes, you can exercise discretion in an individual case, but that discretion needs to be individualized and case-specific. You can’t just say you’re not going to do certain offenses.”
DeSantis called it “neglect of duty” and incompetence — ground for removal under state law.
The Warren complaint denies that’s what happened. After consulting with members of the community, he did order presumptive nonenforcement for crimes including trespassing at a business location or disorderly conduct, or stemming from pedestrian or stops of bicycle riders, it says.
But Warren’s official policy also stipulated that prosecutions in these cases could be justified if, “based on the facts and circumstances of the case, the public safety needs of the community outweigh the presumption not to file the case.”
“It is not a universal or blanket policy,” the complaint says.
“The governor lives in a political arena where he can say things that just are disconnected from the truth. As a prosecutor, I’ve spent my career in a court of law where facts matter, where evidence matters, where the truth matters,” Warren told reporters.
The complaint notes that Warren has clashed with the governor in a number of policy areas, including 2019’s Amendment 4, intended to reenfranchise former felons, and 2021’s “anti-riot” law, criminalizing some forms of protests following the George Floyd demonstrations the year before.
“Just because the governor calls something neglect of duty or calls something incompetence doesn’t make it true. It’s for the courts to define those words. The courts construe the Constitution, not the governor,” Warren told reporters.
During that news conference, a reporter observed that, even if he wins in trial court, the Republican-dominated U.S. Court of Appeals for the Eleventh Circuit might well rule for DeSantis.
“There are no guarantees anytime you go to court,” said Warren’s attorney, J Cabou of Perkins Coie. “The only thing I can guarantee is that the law is on our side.”
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