Gov. Ron DeSantis’ lawyers Thursday asked a full federal appeals court to take up a battle about the suspension of Hillsborough County State Attorney Andrew Warren, saying a three-judge panel’s decision “stymies the governor’s supervisory power by enabling local officials to willfully neglect their duties for political reasons under the banner of ‘private speech.’”
In a 41-page petition filed at the 11th U.S. Circuit Court of Appeals, the lawyers argued that the panel decision conflicted with legal precedents and that DeSantis was justified in suspending the twice-elected prosecutor.
“The panel opinion strikes an unprecedented blow against a state’s sovereign interest in managing its officials and ensuring the faithful execution of its laws,” the petition said.
The petition seeks what is known as an “en banc” hearing before the full appeals court in a case that has drawn national attention.
DeSantis suspended Warren in August 2022, accusing him of “incompetence and willful defiance of his duties.” DeSantis’ executive order, in part, pointed to Warren signing a national organization’s statement about refraining from prosecuting abortion cases.
The governor also targeted Warren for signing a statement that criticized laws restricting care for transgender people. In addition, DeSantis cited Warren policies that could limit prosecution of cases related to bicycle and pedestrian stops by police and certain low-level offenses.
Warren filed a lawsuit, arguing that the suspension violated his First Amendment rights. U.S. District Judge Robert Hinkle allowed the suspension to stand, but the appeals-court panel this month vacated that ruling and ordered Hinkle to reconsider issues in the case.
Hinkle found that the First Amendment protected Warren on two factors — his political affiliations and advocacy for criminal-justice reform, the appeals-court panel ruling said. Nevertheless, he concluded that DeSantis would have suspended Warren based on other factors that were not protected by the First Amendment.
But the appeals-court panel ruled that two of those other factors were protected by the First Amendment. One of those factors was consideration of the statement that Warren signed about abortion. The other factor was DeSantis’ “anticipated political benefit from suspending a progressive prosecutor,” the panel ruling said.
The panel said the First Amendment protects Warren from decisions based “solely on political benefit.” It said facts in the case showed that “DeSantis based Warren’s suspension on his reputation as a ‘reform prosecutor.’ DeSantis’s political benefit was solely derived from Warren’s political ideology.”
The panel directed Hinkle to look again at other motivations that DeSantis asserted in the suspension — the issues related to limiting prosecution of cases related to bicycle and pedestrian stops by police and certain low-level offenses.
But the petition filed Thursday by DeSantis’ lawyers contended that the panel decision was “deeply flawed.”
“It held that the First Amendment precludes Florida from disciplining a prosecutor for promising not to enforce the law — in essence, for promising not to do his job,” the petition said.
Also, the petition argued that the panel decision would upend the “state’s ability to supervise wayward officials who undermine state laws by promising not to enforce them, and transforming the First Amendment from a shield against government oppression into a sword against a governor’s disciplinary decisions.”
The panel’s decision came days after Warren announced that he would not try to regain the state attorney’s post in the November election. The announcement said he decided not to enter the race “following an assessment that showed a high risk” that DeSantis “would simply repeat his illegal suspension of Warren” and replace him.
But in a court document filed after the panel ruling, Warren’s attorneys raised the possibility that he could run again in November.
“The urgency is all the greater now because resolution of this case will also impact the next election for state attorney later this year,” the document said. “Mr. Warren’s decision about whether to run for reelection as state attorney depends in significant part on the outcome of this litigation.”
While DeSantis can suspend public officials, the Florida Senate has ultimate authority about whether to remove them from office. The Senate has put the Warren issue on hold while the court battle plays out.
