A federal judge on Jan. 20 declined to reinstate a Tampa-area prosecutor suspended in August 2022 by Florida Gov. Ron DeSantis.
Federal Judge Robert L. Hinkle criticized DeSantis throughout a 59-page opinion, saying the governor’s office investigation of suspended State Attorney Andrew Warren was politically motivated and cursory, and the official doing it didn’t even take notes. Hinkle detailed that Warren’s declarations that he wouldn’t enforce certain laws were not, in fact, “blanket prohibitions” against doing so.
But Hinkle ruled he didn’t, as a federal judge, have the power under the U.S. Constitution’s 11th Amendment to interfere in this type of state matter. Hinkle ruled that Warren could pursue the case in state courts, but his federal lawsuit was concluded.
DeSantis suspended Warren by executive order on Aug. 4, 2022, claiming four of Warren’s writings constituted blanket non-prosecution policies and arguing that those policies, in turn, showed “neglect of duty” and “incompetence,” among the reasons for which a Florida governor may legally suspend an official including a state attorney. State attorneys in Florida are elected.
In June, Warren and other prosecutors signed a document that said, “enforcing abortion bans runs counter to the obligations and interests we are sworn to uphold.”
“We 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 … provide or support abortions,” the prosecutors stated.
No other state attorneys in Florida signed the document.
DeSantis’s order also cited how Warren’s office avoided prosecuting people who commit misdemeanors such as resisting arrest without violence, stating that the policies aren’t “a proper exercise of prosecutorial discretion” and also usurp the authority of the Florida Legislature by not enforcing the law.
DeSantis appointed Susan Lopez, whom he had previously appointed to a judgeship, as the interim prosecutor to replace Warren.
DeSantis’s action came against the backdrop of “woke” prosecutors declining to enforce laws in several large cities. Financier George Soros had contributed to many of them, directly or through intermediary organizations like the Democratic Party or the Tides Foundation.
Hinkle considered the facts of the case at length after a non-jury trial. He found that DeSantis violated Warren’s First Amendment rights but says the violations “were not essential to the outcome and so do not entitle Mr. Warren to relief in this action.”
“The suspension also violated the Florida Constitution, and that violation did affect the outcome. But the Eleventh Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law,” Hinkle held.
Hinkle ruled that Warren’s claims against DeSantis under state law—that DeSantis violated the Florida Constitution—are dismissed “without prejudice” under the 11th Amendment. That means that Warren can pursue the matter further. Warren’s claim that DeSantis violated federal law—the First Amendment—was rejected with prejudice, meaning that case is closed, Hinkle wrote.
Hinkle completely rejected the basis of DeSantis’s suspension of Warren.
“Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr.Warren had blanked policies not to prosecute certain kinds of cases. The allegation was false,” wrote Hinkle, appointed to the federal bench by Bill Clinton in 1996. Hinkle is a senior judge, meaning he is semi-retired but available to work part-time, according to Ballotpedia.org.
Hinkle painted a picture of DeSantis’s adviser Larry Keefe conducting a cursory investigation, one, evidence suggested, designed to find a progressive prosecutor for DeSantis to suspend for political purposes. But Hinkle didn’t address the time span: Keefe began his work in December 2021, and Warren wasn’t suspended until August, suggesting the investigation wasn’t rushed.
Factors in the case, Hinkle wrote, included how Warren did his job, his advocacy of what Hinkle termed “reform-prosecutor” positions associated with a left-leaning organization, a statement from which Warren signed, and two office policies, one dealing with bicycle and pedestrian stops and the other low-level offenses.
Warren accused DeSantis of abusing his power and “suspending me not in the pursuit of justice, but in the pursuit of politics.”
