ATLANTA (CN) — Florida Governor Ron DeSantis violated the First Amendment rights of an elected state attorney when the Republican suspended and replaced him, a federal appeals court ruled on Wednesday.
The unanimous decision by the Eleventh Circuit could allow former Hillsborough County State Attorney Andrew Warren to run for office again, just two days after he announced he would not pursue reelection.
DeSantis removed Warren in August 2022 after the Tampa prosecutor signed onto a letter pledging to “refrain from prosecuting those who seek, provide or support abortions.”
The letter from 90 prosecutors around the country came after the U.S. Supreme Court overruled Roe v. Wade in June 2022, months after Florida passed its 15-week abortion ban.
Warren, a Democrat first elected in 2016, also signed a statement condemning the criminalization of gender-affirming care for transgender people.
At the time, DeSantis accused Warren of “neglect of duty.” But the Eleventh Circuit found DeSantis “lacked probable cause to believe Warren neglected his duty or was incompetent.”
“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” U.S. Circuit Judge Jill Pryor wrote. “On remand, DeSantis must prove that unprotected activity, such as Warren’s actual performance or his policies, motivated him to suspend Warren.”
Pryor, a Barack Obama appointee, was joined on the panel by U.S. Circuit Judge Kevin Newsome, a Donald Trump appointee, and U.S. District Judge Anne Conway, a George Bush appointee sitting on the panel by designation.
The ruling sends the case back to the Tallahassee-based federal court that originally ruled DeSantis violated Warren’s free speech rights in some instances, but still could have suspended him for his performance or individual policies, such as the former state attorney’s decision to not prosecute some low-level crimes.
Nonetheless, the Eleventh Circuit judges sharply criticized DeSantis, accusing the governor of overstepping his authority and violating Warren’s First Amendment rights.
“Voters elected Warren; DeSantis did not appoint him,” Pryor wrote.
“If alignment with DeSantis’s political preferences were an appropriate requirement to perform the state attorney’s duties, there would be little point in local elections open to candidates across the political spectrum.”
In a concurring opinion, Newsome noted Warren’s views on abortion are not relevant to his job performance.
“Bottom line: The Supreme Court has made clear — for reasons that cut to the core of our representative democracy — that the First Amendment safeguards elected officials’ right to express their views on salient political issues,” he wrote.
Just two days ago Warren announced he would not seek reelection this year.
“If I ran and won, he could suspend me again for whatever bogus reason he wanted,” Warren said in a video posted to X, formerly Twitter, on Monday. “And then we’d be right back where we are today with an illegal, unqualified political appointee installed in the job.”
After suspending Warren, DeSantis appointed Susan Lopez, a Republican who last served as a county court judge.
When reached Wednesday, Warren praised the appellate decision.
“This is what we’ve been fighting for from the beginning — the protection of democracy,” he said. “We look forward to returning to the district court to obtain the relief that has been denied to me and all the voters of Hillsborough County for 17 months: reinstating the person elected by the voters.”
Warren did not address reelection, but the ruling did leave open the possibility that the federal court could reinstate the state attorney — something the previous lower court decision dismissed.
“DeSantis argues that even if Warren prevails on the merits of his claim, the district court lacks the authority to reinstate Warren,” Pryor wrote. “We reject this argument. The Eleventh Amendment permits federal courts to remedy First Amendment violations.”
Jeremy Redfern, press secretary for DeSantis, called the ruling an “egregious encroachment on state sovereignty.”
“A state prosecutor’s declared commitment to not enforce the laws of this state is not protected by the U.S. Constitution,” Redfern said. “The federal appeals court is flat wrong to have concluded otherwise.”
“This decision sets a dangerous precedent, and it will empower the chaos we see across the United States as politically motivated prosecutors will continue to ignore criminal laws they don’t like and put our communities at risk,” he added.
Follow @alexbpickett
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