Appeals court ruling opens door to possible return to office for Andrew Warren

Two days after Hillsborough State Attorney Andrew Warren announced he wouldn’t run to be reelected to the office from which Gov. Ron DeSantis suspended him, a federal appeals court on Wednesday gave Warren’s case for reinstatement some hope.In a 59-page ruling, the 11th Circuit Court of Appeals wrote that the Tallahassee federal judge who declined to return Warren to office should reconsider the case.The opinion, authored by 11th Circuit Judge Jill Pryor, critiqued the legal reasoning of an earlier decision by U.S. District Judge Robert Hinkle, who largely agreed that Warren’s suspension violated his First Amendment right to free speech, but concluded he didn’t have the power to return him to office.Pryor’s opinion carries a crucial footnote voicing disagreement with that notion.“DeSantis argues that even if Warren prevails on the merits of his claim, the district court lacks the authority to reinstate Warren. We reject this argument,” it reads. “The Eleventh Amendment permits federal courts to remedy First Amendment violations.”The ruling kicks the case back to Hinkle’s court, where further proceedings could decide whether Warren returns to office.“This is what we’ve been fighting for from the beginning — the protection of democracy,” Warren said Wednesday afternoon in a news release. “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 say whether this latest twist in the case will make him reconsider his decision earlier this week not to run against Suzy Lopez, the longtime prosecutor whom DeSantis appointed to replace him.Lopez has amassed significant local support in her run for the office and raised more than $100,000 in campaign contributions.“The litigation about the suspended State Attorney will work through the court system,” said a statement issued by Lopez’s office Wednesday. “But she is singularly focused on keeping this community safe.”DeSantis’ press secretary, Jeremy T. Redfern, called Wednesday’s 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 wrote in an email to the Tampa Bay Times. “The federal appeals court is flat wrong to have concluded otherwise.”Given that Hinkle has to consider the ruling — and that there could be another appeal — it is unclear if Warren could be reinstated before the November 2024 election.Judge Pryor, appointed to the appeals court by former President Barack Obama, was joined in the opinion by 11th Circuit Appeals Court Judge Kevin Newsom, a Donald Trump appointee. Senior U.S. District Judge Anne Conway of Florida, who was temporarily assigned to the appeals court, was also part of the panel that heard the case.In August 2022, DeSantis suspended Warren from the office to which he was twice elected, accusing him of “incompetence” and “neglect of duty.”The governor cited statements Warren signed with other elected prosecutors throughout the nation pledging not to prosecute cases involving abortion or transgender health care. He also pointed to policies Warren enacted in his office that advised against prosecuting some low-level, nonviolent crimes, and against pursuing cases arising from police bicycle and pedestrian stops, a practice that has been linked to racial disparities in the criminal justice system.Warren, a Democrat, called his ouster a political stunt by the Republican governor who is running for president. Warren sought to get his job back through the courts. This week, he said he wouldn’t run to regain the office in 2024 because of the “high risk” that DeSantis would immediately suspend him again.The appeals court noted that Warren’s policies against prosecuting certain cases didn’t preclude his prosecutors from using their discretion. The pledges he signed against pursuing abortion and transgender cases did not become office policy, the court noted.The opinion includes an extensive analysis of DeSantis’ reasons for the suspension and concludes that some violated Warren’s First Amendment free speech rights.Officials in DeSantis’ office “despite holding strong views … identified no actions that Warren had taken or failed to take as state attorney,” the court’s opinion stated. “Nor did they cite any laws that Warren underenforced.”Judge Newsom wrote in a concurring opinion that the Supreme Court has made clear — ”for reasons that cut to the core of our representative democracy” — that elected officials who express political opinions are protected.“The First Amendment is an inconvenient thing,” he wrote. “It protects expression that some find wrongheaded, or offensive, or even ridiculous. But for the same reason that the government can’t muzzle so-called ‘conservative’ speech under the guise of preventing on campus ‘harassment,’ the state can’t exercise its coercive power to censor so-called ‘woke’ speech with which it disagrees. What’s good for mine is (whether I like it or not) good for thine.”The appeals court specifically directed the lower court to reexamine whether DeSantis would have suspended Warren based on something he did that was not protected by the First Amendment, said Gary Dolgin, a Tampa attorney who has no connection to the case and reviewed the opinion at the request of the Times. That includes Warren’s performance and specifically his policies on bike stops and low-level offenses.“My reading of this opinion says that he could potentially only remain suspended if the district court makes a determination that DeSantis would have suspended him solely for these policies,” Dolgin said.When the case comes back in front of the lower court, Dolgin said, the burden of proof will be on DeSantis to show he would have suspended Warren based on those factors. Times Staff Writer Tony Marrero contributed to this report.

Appeals court ruling opens door to possible return to office for Andrew Warren

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