Democrat Prosecutor Suspended by DeSantis Wins Appeal on First Amendment Claims

Republican presidential candidate Florida Gov. Ron DeSantis participates in the fourth GOP presidential primary debate at the University of Alabama in Tuscaloosa, Ala., on Dec. 6, 2023. Madalina Vasiliu/The Epoch Times

A federal appeals court has vacated a trial court decision that allowed Florida Gov. Ron DeSantis to indefinitely suspend a state prosecutor who vowed not to enforce the restrictions on abortion or a potential law prohibiting transgender medical procedures for children.

The Democrat prosecutor, Andrew Warren, has accused the Republican governor of violating his First Amendment rights and illegally overriding the will of voters who re-elected him in 2020. On the other hand, the state argued that Mr. Warren’s suspension was solely based on his performance in office, not his speech.

Specifically, by signing advocacy statements indicating his refusal to prosecute those who break Florida laws with which he disagrees, the state claimed that the prosecutor neglected his official duties and essentially usurped the governor’s veto power.

“When you flagrantly violate your oath of office, when you make yourself above the law, you have violated your duty,” Mr. DeSantis said in August 2022. “You have neglected your duty, and you are displaying a lack of competence to be able to perform those duties.”

In January 2023, the U.S. District Court for the Northern District of Florida upheld Mr. DeSantis’ decision after a bench trial. In his complicated 59-page ruling, District Judge Robert Hinkle said he found at least two of the six factors motivating Mr. DeSantis’ suspension order involved the liberal prosecutors’ First Amendment-protected speech but ultimately agreed that the governor had just enough evidence to target Mr. Warren’s job performance.

“The suspension would have occurred even had there been no First Amendment violation—the First Amendment violation was not essential to the outcome,” wrote Judge Hinkle, a Bill Clinton appointee. He also noted that his hands are tied by the Eleventh Amendment, which “prohibits a federal court from awarding relief of the kind at issue against a state official based only on a violation of state law.”

Federal Court Decision

In an opinion handed down on Wednesday, a three-judge panel for the U.S. Court of Appeals for the Eleventh Circuit unanimously ruled that the trial court erred in setting aside concerns about the prosecutor’s First Amendment rights.

“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” read the 59-page opinion penned by Circuit Judge Jill Pryor. “The First Amendment protects his signing the transgender care and abortion statements.”

“Neither statement became policy,” wrote Judge Pryor, who was elected by former President Barack Obama. “Warren neither distributed the statements nor included them in materials provided to prosecutors.”

“Neither statement referred to a specific Florida law,” she added. “To the contrary, the statements, which addressed national audiences, contained language inapplicable to Florida. When Warren signed the statement about bills targeting the transgender community, no Florida law criminalized gender-affirming care.”

Florida’s ban on transgender medical procedures for children, such as hormone therapy or puberty blockers, is being challenged in court. Judge Hinkle has temporarily blocked its enforcement pending the outcome of the trial.

Mr. Warren’s case is now sent back to the district court. “On remand, the district court should reconsider whether DeSantis would have made the same decision based solely on the unprotected activities,” Judge Pryor said.

Judge Pryor is joined by Circuit Judge Kevin Newsom, appointed by former President Donald Trump, and District Judge Anne Conway, appointed by former President George H.W. Bush.

In a separate concurring opinion, Judge Newsom analyzed the language of four statements Mr. Warren signed in 2021 and concluded that they were “pure speech entitled to First Amendment protection.”

The statements were authored and published by Fair and Just Prosecution, a nonprofit advocacy group focused on organizing, training, and promoting elected prosecutors in favor of progressive approaches to criminal justice. These advocacy statements addressed the death penalty, election security, so-called “gender-affirming health care,” and abortion.

“The Supreme Court has made clear ... that the First Amendment safeguards elected officials’ right to express their views on salient political issues,” he argued. “Whatever one thinks of Warren’s particular views about abortion, he is no less entitled to that protection.”

Jeremy Redfern, a spokesman for the Florida governor’s office, called Wednesday’s ruling “inappropriate.”

“The court’s decision is also an egregious encroachment on state sovereignty,” Mr. Redfern stated. “Governor DeSantis used his authority under the state constitution to suspend this prosecutor from office and the authority to remove lies with the Florida Senate. It’s inappropriate for a federal court to intervene in this matter.”