Judge prefers a trial for DeSantis’ removal of Tampa prosecutor

U.S. District Judge Robert L. Hinkle is thinking of a trial soon instead of immediate reinstatement to settle the matter “once and for all.”
Suspended Hillsborough State Attorney Andrew Warren, flanked by his attorneys, speaks to reporters after a federal court hearing in Tallahassee Monday morning.
Suspended Hillsborough State Attorney Andrew Warren, flanked by his attorneys, speaks to reporters after a federal court hearing in Tallahassee Monday morning. [ LAWRENCE MOWER | Times ]
Published Sept. 19, 2022|Updated Sept. 19, 2022

TALLAHASSEE — A federal judge hearing the case of Hillsborough County’s ousted state attorney appears to favor a speedy trial over immediately reinstating Andrew Warren to decide the issue “once and for all.”

During a nearly two-hour hearing in Tallahassee, Senior U.S. District Judge Robert L. Hinkle indicated he’d like to avoid the possible back-and-forth effect of reinstating Warren, only to have it potentially overturned by an appeals court.

“The public isn’t served by yo-yoing this office,” Hinkle said. “It’s everyone’s intent to get this done just as quickly as possible.”

Hinkle said he wanted a trial within the next four months to settle the matter “once and for all.” The decision, which will be formalized in writing, was welcomed by Warren and his lawyers.

“We look forward to a trial on the merits,” Warren said after the hearing. “We look forward to, as the judge said, the governor having the opportunity to come in here to justify what he did.”

The twice-elected state attorney was escorted from his downtown Tampa offices Aug. 4 by an armed sheriff’s deputy. Gov. Ron DeSantis accused him of refusing to enforce laws involving abortion and transgender health care, and of not prosecuting certain low-level, nonviolent crimes.

DeSantis had cited two pledges Warren signed along with other prosecutors across the country: one declining to criminalize gender-affirming health care for transgender people, and the other agreeing to refrain from prosecuting those providing or seeking abortions.

The governor also took issue with Warren’s office policies on avoiding charges for specific low-level crimes, including trespassing and disorderly conduct, and for arrests that occur when a police officer stops a bicyclist or pedestrian — known locally as “biking while Black.”

Warren, a progressive Democrat, contended that his removal was a political stunt by the conservative governor with whom he had previously clashed. He said DeSantis violated his free speech rights and overstepped his authority.

Warren sued DeSantis in federal court, arguing his First Amendment rights were violated. He asked the judge for a preliminary injunction to reinstate him to his job.

During Monday’s hearing, Hinkle wrestled with the central question: When Warren signed on to the statements about not enforcing particular crimes, was that protected free speech? Or was it conduct announcing a policy decision for his office?

Warren said he’s never made charging decisions in such abortion or transgender cases, and his office guidelines weren’t blanket policies. Prosecutors working under him were required to apply their judgment and discretion to the individual cases, his attorney argued Monday.

But Florida Solicitor General Henry Whitaker, representing DeSantis and the state, said Warren crossed the line.

Warren is allowed to make statements on public issues, and he pointed to Warren’s tweets criticizing the Supreme Court’s decision to overturn Roe v. Wade this year. But refusing to prosecute certain crimes is not protected speech, he said.

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“Andrew Warren has no First Amendment right to say he will not do his job,” Whitaker said.

When a state attorney speaks, they represent the state, and refusing to prosecute certain cases indicates they have a gross misunderstanding of their duties deserving of removal, Whitaker said.

“You really do think the governor is the state attorney’s boss,” Hinkle said to Whitaker.

Not quite, Whitaker replied. But state attorneys are still state employees, he said, and the governor can ensure they assist one another on various cases or reassign them to other circuits.

“The governor absolutely supervises state attorneys,” Whitaker said.

Hinkle indicated that a trial would get to the bottom of whether there were other reasons for Warren’s removal.

He compared the situation to that of a wrongful termination lawsuit, in which the employer will give a stated reason for firing someone. Following a trial, however, it often turns out that stated reason was false, he noted.

Hinkle said that for Monday’s hearing, he had just a few pieces of evidence about Warren’s removal: the written order DeSantis issued, the Aug. 4 news conference DeSantis hosted and a tweet issued the night before by his spokesperson warning to “Prepare for the liberal media meltdown of the year.”

The news conference was a raucous event, with DeSantis flanked by police chiefs airing grievances about Warren in specific cases and a large crowed cheering the governor’s comparisons to rogue prosecutors in California. Hinkle said he watched the event, and it indicated there were other reasons for Warren’s removal.

“It seems to me ... that it’s chock-full of policy disagreements,” Hinkle said of the news conference.

Hinkle and the lawyers on Monday seemed to agree that they were in uncharted legal territory, with no prior examples of a governor suspending another constitutional officer being decided in a federal court on free speech grounds.

They mentioned the case of former Orange-Osceola State Attorney Aramis Ayala vowing not to enforce the death penalty. Then-Gov. Rick Scott reassigned potential death penalty cases to another circuit, but did not suspend her.

Hinkle repeatedly brought up the case of Julian Bond, a Black civil rights activist elected to the Georgia House of Representatives in 1965. In a news interview prior to taking office, Bond said he endorsed a public statement opposing the Vietnam War released by his past organization, the Student Non-Violent Coordinating Committee. During the interview, Bond said he was a pacifist who opposed all war.

The Georgia House of Representatives argued that the statements were against his oath of office, and they voted to prevent him from being seated in the chamber, sparking a legal fight that went to the U.S. Supreme Court.

The court unanimously ruled in favor of Bond, saying that legislatures can impose oaths of office, but they can’t limit legislators’ speech on policy issues. They ordered Bond to be seated.