A federal judge ruled Friday that Florida Gov. Ron DeSantis violated the free speech rights of a state attorney in Tampa by suspending the Democrat from office after he indicated he wouldn’t bring abortion-related prosecutions and de-prioritized taking some misdemeanor lawbreakers to court.
But it was still a win for the governor. U.S. District Judge Robert Hinkle said federal law tied his hands in reversing the state-level suspension of Hillsborough County State Attorney Andrew Warren, who could not be reached for comment.
Warren's suspension therefore stands and now he will have to plead his case to the Republican-controlled Florida Senate, which has the final say on whether to permanently remove him from office.
Hinkle’s complicated 59-page ruling made clear that the evidence showed DeSantis was punishing Warren for being a progressive prosecutor and his political speech in some cases, and that his reasons for doing so probably violated the Florida Constitution, which gives a governor broad powers to suspend an official for neglect of duty and incompetence.
In a statement posted on Twitter, DeSantis' office lauded the ruling without addressing those nuances.
"Today, Judge Hinkle upheld @GovRonDeSantis decision to suspend Andrew Warren from office for neglect of duty and incompetence," Taryn Fenske, DeSantis' communications director, tweeted.
Hinkle, citing the evidence at trial, made clear that his sympathies lay with Warren, but that the law tied the judge's hands because DeSantis' suspension order had just enough evidence to target Warren's conduct as a prosecutor, not just his free speech rights.
"The record includes not a hint of misconduct by Mr. Warren. So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it," Hinkle wrote. "He had no blanket nonprosecution policies. Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close."
At the same time, though, Hinkle said that the Eleventh Amendment to the U.S. Constitution "prohibits a federal court from awarding relief of the kind at issue against a state official based only on a violation of state law. And the suspension would have occurred even had there been no First Amendment violation — the First Amendment violation was not essential to the outcome."
Hinkle’s decision marked the second time in recent months that the Florida governor — a self-styled defender of the First Amendment — was taken to task by a federal judge for infringing free speech rights. In November, another federal judge struck down portions of DeSantis’ so-called “Stop WOKE Act,” comparing it to George Orwell’s “1984” over the “positively dystopian” way it muzzled college professors.
As with that case, Warren’s suspension revolved around DeSantis’ crusade against “woke” ideology, which the governor’s general counsel defined in court as “a view that there are systemic injustices in American society and the need to have policies that address those systemic injustices.”
DeSantis’ suspension of Warren bestrides major fault lines of the culture war — abortion, transgender rights, race and criminal justice reform — and it provides a window into the partisan nature of the governor’s executive team and his pugilistic governing style of punishing political critics or opponents. With a knack for engaging in fights that capture national headlines, DeSantis' popularity among Republican voters extends well beyond the state as an increasing number nationwide now say they favor him as a 2024 presidential contender over former President Donald Trump.
DeSantis has experienced a string of court losses in the process. The cost of waging the culture wars in 15 separate suits totals at least $16.7 million — including $1.7 million for Warren’s case — spent on attorneys’ fees with politically connected firms, according to an analysis by The Miami Herald/Tampa Bay Times state capital bureau.
By suspending Warren, DeSantis also elevated the Democrat’s political profile in his own party. He’s now considering a re-election bid in 2024 or, perhaps, a challenge to Republican Sen. Rick Scott, according to a Warren adviser who spoke on the condition of anonymity last month about his thinking.
Warren was first elected in 2016 and became the face of criminal justice reform for prosecutors, partly with the help of a political group funded by the liberal philanthropist George Soros, who’s anathema to the right and was central to DeSantis' political talking points — the so-called Soros plan — at his campaign-style press conference Aug. 4 when he unexpectedly suspended Warren.
“Instead of using his office to fight crime, protect people, and enforce the law, he uses it for Soros-funded social justice activism,” DeSantis said at the Tampa press conference, flanked by conservative law enforcement officials who criticized Warren’s liberal policies.
In his suspension order, DeSantis cited four different issues with Warren to justify his suspension.
The first two involved clear policies Warren established in his office to de-emphasize prosecutions of non-threatening low-level misdemeanors and of people arrested for obscure bicycle infractions — a major controversy in Tampa that was derided as “biking while Black” because of the raw racial disparities involved in the arrests.
Those two issues, concerning Warren's "conduct" and not strictly his "speech" were too much for Hinkle to ignore in acknowledging that DeSantis could have the legal right to suspend Warren.
The suspension and controversy over the case revolved around a bigger issue: Warren's decision to sign a June 24 letter drafted by the progressive group Fair and Just Prosecution in which he and other prosecutors said they would “decline to use our offices’ resources to criminalize reproductive health decisions and commit to exercise our well-settled discretion and refrain from prosecuting those who seek, provide, or support abortions.”
That one sentence also helped seal Warren's fate because it concerned his conduct -- even though no such case had yet come before his office, according to Hinkle.
"One could reasonably understand 'refrain from prosecuting' to mean 'not prosecute.' And one could reasonably understand ... that the discretion had already been exercised and a case to which the sentence applied would not be prosecuted," Hinkle wrote.
Dated June 24, the same day the U.S. Supreme Court struck down federal abortion protections in Roe v. Wade, the letter came two months after DeSantis signed a law banning abortions at 15 weeks of gestation. It had no rape or incest exemptions. The Florida law, which was immediately challenged in state court, was not referenced in the letter Warren signed. And no one in Hillsborough County was charged with violating that state law when Warren was the county prosecutor.
Among the issues Hinkle took with DeSantis' suspension order of Warren was the prosecutor's decision to cite another letter signed by Warren, in June 2021, in which prosecutors condemned efforts in a number of states to limit transgender rights, including hormones, puberty blockers and related sex-reassignment surgeries.
There have been no transgender-related criminal cases in Florida because the state had no laws that were referenced in the letter Warren signed.
Court testimony from DeSantis administration officials showed that the abortion letter was the major cause of Warren's suspension. Abortion was the only issue mentioned in the first draft of DeSantis' suspension order.
Warren's suspension stood out because of the way DeSantis’ predecessor, Scott, dealt with a different Florida prosecutor, Orlando’s Aramis Ayala. In 2017, she refused to seek the death penalty in any case, including that of a cop killer who also murdered his pregnant girlfriend. Scott didn’t completely suspend her from office and instead just assigned death penalty cases from her circuit to other prosecutors in the state.
With no related crimes to prosecute, DeSantis had “some initial kind of reluctance” to suspend Warren for neglect of duty or incompetence, his general counsel, Ryan Newman, testified in the weeklong trial in Tallahassee federal court that concluded Dec. 1.
“Can a pledge constitute neglect of duty if no … crime has been committed and referred to the state attorney?” DeSantis asked at a meeting to discuss Warren, according to Newman’s testimony.
But Newman and DeSantis’ so-called public safety czar, Larry Keefe, argued that Warren was undermining public safety and the rule of law, court transcripts show. Keefe, echoing language from the suspension order he helped draft, testified that Warren’s policies and decision to sign on to the two letters constituted “blanket” policies that undermined the rule of law and essentially usurped the lawmaking power of the governor and the Legislature.
Warren’s attorneys pointed out in court, however, that he specifically contradicted this point when he gave a local media interview, conducted four days after the abortion letter was released, that said “Warren wants to make it clear his office doesn’t have a blanket rule on abortion bans.”
The governor’s defense argued that the headline of the story accurately depicted it was a blanket ban: “Hillsborough State Attorney pledges not to press charges against abortion patients, doctors.” Warren’s former chief of staff, Gary Weisman, agreed with the governor’s defense, prompting Warren’s attorneys to suggest he was too cozy with the DeSantis administration because he wanted to keep his job under the newly appointed state attorney.
Warren’s attorney, Jean-Jacques Cabou, asked Newman and Keefe why they didn't just call Warren to understand his position, but they respectively said it would be pointless or it wasn't needed.
Keefe, who had served as U.S. attorney in Florida’s Northern District under Trump, testified that he wasn’t conducting that type of inquiry into Warren’s positions. He testified that he was tasked by DeSantis in a December 2021 meeting to see “whether there were any state attorneys in the state of Florida that were not enforcing the law.” At the time, the issue of "woke prosecutors" across the country was the subject of conservative media coverage.
Keefe called various sheriffs and conservative political allies in Florida’s law enforcement community and soon determined that “all roads” led to Warren. Keefe admitted under oath that, except for a Democratic sheriff, he spoke only to Republicans for his review, an issue that Judge Hinkle highlighted in a series of questions.
Hinkle also expressed a measure of amazement at the lack of documentation inside the DeSantis administration, which often resists fulfilling records requests, including the controversy over his controversial decision to fly migrants from Texas to Martha’s Vineyard in Massachusetts, a project overseen by Keefe.
“Does nobody take notes of any of this at the governor’s office?” Hinkle asked at one point during the Warren case. “You go to these meetings, you have with four or five people, and nobody took any notes? Mr. Keefe had all these calls. Nobody took any notes? You were in these meetings, and you don’t have any notes?”
Unable to produce notes or give specifics, Keefe testified that law enforcement complained about Warren’s general policies concerning low-level misdemeanors. Keefe made clear he thought Soros was a puppet master for Warren's policies.
"And based on all the look and inquiry that I did, it appeared to me that Mr. Warren -- and the word that I chose to use -- had ceded his power and authority as the state attorney in Tampa to be an expresser or a conduit for Mr. Soros’ world views on criminal prosecution," Keefe testified.
In some of the versions, Keefe mentioned Soros, but that was edited out, only to appear as "The Soros Plan" talking points for DeSantis on the day of the press conference.
“For Gov. DeSantis, this was an opportunity to kill three political birds with one stone," Cabou said in closing arguments. "It was a political trifecta: He could proclaim his opposition to abortion; he could condemn woke transgender ideology; and he could talk about that tough-on-crime mindset that Mr. Newman testified about this morning by slamming a Soros-backed, progressive prosecutor, and he could do it all in one action.”
In his order, Hinkle criticized the shallow, cursory review conducted by Keefe, which the judge said DeSantis misrepresented when he trumpeted Warren’s suspension on Tucker Carlson Tonight on Fox News after holding a press conference in Tampa.
“When the dust cleared—after the suspension, the media event, the Carlson show, and much additional reporting—the Governor’s office calculated the free media coverage generated by the suspension at $2.4 million in 14 days,” Hinkle wrote.
“I find, though, that the single sentence in the FJP abortion statement, together with the bike and low-level-offense policies, would have been enough [to allow for a suspension],” Hinkle ruled. “What mattered was not whether these were actually nonprosecution policies—they were not—but only whether the assertion could eventually be defended in the heavily partisan Florida Senate. With Mr. Newman’s sign off, the Governor did what he had been looking to do from the day he assigned the project to Mr. Keefe: he took down a reform prosecutor.”