Testimony begins in challenge to DeSantis suspension of elected Tampa prosecutor

Andrew Warren claims violation of First Amendment, seeks reinstatement

By: - November 29, 2022 7:00 am

U.S. District Courthouse for the Northern District of Florida, Tallahassee. Credit: Michael Moline

A federal trial opens in Tallahassee Tuesday in elected Hillsborough County prosecutor Andrew Warren’s First Amendment challenge to his suspension by Gov. Ron DeSantis, with the governor still insisting Warren’s “blanket” refusal to obey state law justified the move.

Depositions in the case have already revealed some startling information: that DeSantis initially was reluctant about removing Warren, a Democrat, and that the administration hasn’t gone after a Republican sheriff who did essentially what DeSantis accuses Warren of doing: Placing his own policy preferences before his obligation to enforce state law.

That first disclosure came in a deposition of DeSantis’ General Counsel, Ryan Newman, who said that he had to talk the governor into it despite DeSantis’ fear of being overruled by a judge. He said he argued that Warren’s political stance might encourage people to violate the law.

“It’s even worse to publicly pledge, and — as — as the state attorney to not prosecute a certain class of crimes. I mean, it’s even worse because you’re inviting it. The state attorney is inviting the law breaking, and — and I just think he was convinced of that,” Newman said in the deposition.

Additionally, Newman conceded the governor’s office never moved against Seminole County Sheriff Dennis Lemma, a Republican, who declared in 2020 that he would refuse to enforce a proposed state constitutional amendment banning semiautomatic rifles and shotguns.

Newman seemed to concede that the Warren policy was “woke” and the Lemma policy was not woke. And “anti-woke” is DeSantis’ political brand.

“Yeah, I guess, I — I should — I mean, you know, we did pass legislation that’s called Stop WOKE Act. So I guess it’s fair to say that, yes, he advocates against it. And, you know, he advocates for policies that — you know, that are opposed to — ” Newman broke off.

U.S. District Judge Robert Hinkle before the Thanksgiving holiday denied Warren’s attorneys’ request to call DeSantis, himself, to the stand, according to news reports, but said they could ask again depending on how testimony by the governor’s aides transpires.

In suspending Warren on Aug. 4 (and having an armed law officer escort him from his office), DeSantis cited Warren’s signature on two policy statements opposing filing charges against doctors providing abortions or transgender care — even though no such cases ever came before him (indeed, no state law at that time targeted transgender care.)

Andrew Warren, suspended by Gov. Ron DeSantis, holds a news conference in Tallahassee. Flanking him is his attorney, J Cabou. Credit: Michael Moline

A pretrial brief filed by lawyers from Attorney General Ashley Moody’s office attempts to play down the importance of the abortion and transgender statements to the governor’s decision relative to a Warren policy presumption against charging resisting arrest without violence stemming from bicycle or pedestrian stops by police.

At the time, DeSantis had already signed a 15-week abortion bill, in April. And in June, the U.S. Supreme Court overturned the landmark Roe v. Wade case.

‘Blanket refusal’

“[T]he governor reasonably construed Mr. Warren’s statements to be either blanket refusals to enforce Florida law or evidence that Mr. Warren was grossly ignorant of his official responsibilities. Those circumstances amply justify suspension under the Florida Constitution,” the brief reads.

In their pretrial brief, Warren’s attorneys argued that DeSantis stated on at least three occasions that he was suspending the prosecutor because he’d signed the policy statements: in the suspension order itself, during a “rally-like press conference announcing the suspension to a curated room of supporters,” and during a Fox News interview.

“In fact, defendant’s lawyers have already conceded in this court that Mr. Warren’s protected speech — the joint statements — was a critical motivating factor in defendant’s decision to suspend. In his motion for a protective order, defendant said that he should not be deposed because his ‘motives [for the suspension] are fully expressed within the four corners of the suspension order.’ Those motives include the protected speech contained in the joint statements.”

Warren was among a group of progressive prosecutors who, under the rubric of a group called Fair and Just Prosecutions, released the abortion statement in June 2019 and the transgender statement in June 2021.

Florida statutes say governors may suspend local officials “for malfeasance, misfeasance, neglect of duty, habitual drunkenness, incompetence, or permanent inability to perform official duties.” DeSantis cited the law when suspending Warren, subject to a hearing before the Florida Senate that hasn’t happened yet. He said the twice-elected prosecutor, who was emerging as a leading Florida Democrat, had made himself a “law-unto-himself.”

However, the U.S. Supreme Court has ruled that elected officials can’t face punishments over policy differences.

‘Over the goal line’

In a deposition, Raymond Treadwell, DeSantis’ chief deputy general counsel, acknowledged that Warren’s position on bike- and pedestrian- related arrests were not the primary concern among DeSantis’ legal aides.

“ … I will say emphatically that it was the abortion statement that drove our recommendation across the goal line,” Treadwell said at one point.

He also referred to Newman, the governor’s general counsel.

“Ryan and I — Mr. Newman and I probably would not have recommended Mr. Warren’s suspension based on those documents standing by themselves. It really was the abortion statement that drove Mr. Newman and I to the point of wholly recommending Mr. Warren’s suspension,” Treadwell said.

Gov. Ron DeSantis announcing the suspension of elected Hillsborough State Attorney Andrew Warren at the Hillsborough County Sheriff’s Office in Tampa, August 4, 2022. (Credit: Mitch Perry.)

During his news conference announcing the suspension, DeSantis implied his aides had conducted a broad investigation into whether state attorneys were ignoring state laws. However, Larry Keefe, the former U.S. attorney in Tallahassee now serving as the governor’s “public safety czar,” described a scattershot process.

“It was an ongoing, hour-by-hour, day-to-day thing in terms of looking into this subject. It was not a — a systematic, methodical investigation. It was incorporating into my routine, my travels, my participations in events and meetings, phone conferences, when I was working with either — or communicating with one other member of the law enforcement community in Florida, or a group of them, I would bring the subject up and listen to what they said,”  Keefe said during a deposition.

“And once again, no one was guiding or directing or telling me what to do. There was no timeline. There was no sense of urgency, Keefe said in the deposition. “It was information I was collecting on an ad hoc basis in the general course of doing my work.”

Keefe said he conferred with sheriffs and high-ranking deputies, including Hillsborough’s Chad Chronister, and with a number of state attorneys but not with Warren, himself, nor any other attorneys working for Warren.

“I did not know or have an existing relationship with Mr. Warren,” Keefe said.

‘That’s not the policy’

Other evidence disputed the existence of a blanket policy on arrest — for example, prosecutors reviewed body-cam footage of these arrests and decided whether to file charges accordingly.

“We don’t have a policy that says you never will file — file a resist without [violence] unless there is a public safety concern.· That’s not the policy.·The policy isn’t even all bike stops or pedestrian stops. Civil, noncriminal, that’s where the racial disparities were,” Jeria Wilds, an assistant in Warren’s racial justice working group, said in her deposition.

And Warren never distributed either the abortion or transgender statement to his underlings or enacted them as policy, Wilds said. In fact, she heard about neither before Warren’s suspension, she said.

‘Quintessential protected speech’

What it boils down to is that DeSantis punished Warren over “quintessential protected speech.” the Warren brief argues.

“[T]he remaining evidence will support a conclusion that the viewpoints Mr. Warren expressed were inseparable from defendant’s decision to suspend him. That evidence will point in the same direction as common sense: defendant never would have seized on the ‘law-unto-himself’ rationale to suspend an elected official who made similar statements that aligned with defendant and supported his defining political positions,” they added.

“Here, defendant and his office made no attempt to understand or identify Mr. Warren’s actual policies or practices. Indeed, there is evidence that the defendant’s staff recognized they did not understand what Mr. Warren’s policies were, considered asking Mr. Warren for clarification, and then decided not to because, they claim, it would have delayed their announcement of his suspension.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.