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
Andrew Warren, suspended by Gov. Ron DeSantis for reasons a federal trial judge ruled were politically motivated, has taken his fight for reinstatement as state’s attorney for Hillsborough County to a federal appeal court.
The twice-elected prosecutor filed a notice of appeal on Tuesday with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.
“The idea that the governor can get away with breaking federal and state law should offend anyone who believes in freedom — free speech, free elections, and that no one is above the law,” Warren said in a written statement.
“We’ve proven that DeSantis broke the law, and I’ll keep fighting until I’m back doing the work that the people elected me to do,” he said.
Warren left open the possibility of bringing a lawsuit against DeSantis in state court, as well.
Press aides to the governor offered no immediate response to a request for comment.
In ousting Warren in August, DeSantis argued the prosecutor was refusing to enforce Florida law. He cited position statements Warren had signed against charging crimes involving abortion or transgender care. DeSantis also raised Warren-established presumptions of nonprosecution against low-level crimes and those arising from bike or pedestrian stops — evidence produced at trial established a racial disparity in these arrests.
U.S. District Judge Robert Hinkle in Tallahassee ruled on Jan. 20:
“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. The actual facts — whether Mr. Warren actually had any blanket nonprosecution policies — did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution,” Hinkle wrote.
The governor violated Warren’s rights under the First Amendment and Florida Constitution, Hinkle reasoned, but still concluded that he lacked jurisdiction to order Warren’s reinstatement, although he did note that DeSantis was free to lift the suspension “if the facts matter.” Aides to the governor have indicated that won’t happen.
That left Warren with the options of appealing to the Eleventh Circuit, filing suit in state court, or contesting his suspension before the Florida Senate. Senate leaders have indicated they won’t hear the matter until Warren’s legal fight concluded.
Bob Jarvis, a constitutional law professor at Nova Southeastern University Shepard Broad Collect of Law, predicted the appeal would avail Warren little, given the Eleventh Circuit’s conservative bent.
“The Florida Constitution places a check on governors abusing their power by giving the Florida Senate the final say on the matter (it can, of course, either remove the officer or reinstate the officer).
“Warren does not want to go before the Florida Senate because he knows it is a rubber stamp for DeSantis. That is true, and a weakness in the system that the Florida Constitution has set up.
“But that is our system (at least until the voters change it), and one has to play by the rules, no matter how unfair they may be in a given situation,” Jarvis said.
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