Stage set for arguments in Warren vs. DeSantis lawsuit

Attorneys for the Florida governor and the ousted Hillsborough state attorney will make their case to a judge Sept. 19.
Composite of State Attorney Andrew Warren and Governor Ron DeSantis.
Composite of State Attorney Andrew Warren and Governor Ron DeSantis. [ Times ]
Published Sept. 9, 2022|Updated Sept. 9, 2022

The legal battle between the ousted Tampa prosecutor who wants his job back and the governor who removed him is poised to roll into a Tallahassee courtroom.

Attorneys for suspended Hillsborough State Attorney Andrew Warren late Friday filed a reply to Gov. Ron DeSantis’ request for the judge to dismiss Warren’s lawsuit. The filing was the last round of written pleadings before a federal judge hears in-person arguments, which are set to occur Sept. 19.

DeSantis suspended Warren last month for what he said was Warren’s refusal to enforce certain state laws. Warren has called the suspension political retaliation for things he said — a violation of his free-speech rights. He filed the lawsuit two weeks after his removal.

Warren framed the suspension as an attack on democracy. He says the governor’s action subverted the will of voters who twice elected him as Hillsborough County’s top prosecutor.

“DeSantis cannot justify retaliating against Warren for Warren’s speech because Warren is not his employee and because courts, not the governor, define the standards for suspension under the Florida Constitution,” Warren’s legal team wrote.

DeSantis said that he removed Warren for incompetence and neglect of duty. His lawyers asked the judge to dismiss the case.

“Mr. Warren had no First Amendment right, as a public official, to declare that he would not perform his duties under Florida law,” the governor’s lawyers wrote in their legal brief.

U.S. District Judge Robert Hinkle plans to allow each side 30 minutes to argue their case 10 days from now. Sometime after that, the judge likely will make a ruling.

DeSantis removed Warren from office Aug. 4. The governor cited statements Warren had signed with other elected prosecutors throughout the nation in which he pledged not to prosecute cases involving transgender health care, or people who seek or provide abortions.

The governor’s order also cited a policy Warren enacted in his office, which said prosecutors should avoid pursuing low-level crimes — among them minor traffic-related offenses, trespassing, disorderly conduct, disorderly intoxication, panhandling and prostitution.

Warren created the “presumption of non-prosecution” policy in March 2021. The written policy included a statement that charges should not be filed for the listed crimes partly because of “the impact that a lawful arrest can have on quelling or resolving an immediate situation.” It states that prosecutors still can bring cases if there are “significant public safety concerns.”

Warren’s office also discouraged prosecutions in cases arising from police stops for bicycle and pedestrian violations, a controversial tactic that has produced racial disparities.

DeSantis appointed Susan Lopez, a county judge and former longtime prosecutor, to replace Warren. One of her first acts as state attorney was to reverse the policies cited in the governor’s order.

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DeSantis’ lawyers argue that Warren was suspended not for his speech, but for his “blanket refusal” to enforce the law. They say DeSantis was within his authority to suspend him. They’ve also argued that the case is a state matter and does not belong in federal court.

Each side has seen supporters file their own friend-of-the-court briefs.

Warren’s supporters include legal scholars, former Florida Supreme Court justices, a former solicitor general and members of the commission that crafted the Florida Constitution’s provision for suspensions.

The Florida Sheriff’s Association, accompanied by more than 40 current and former law enforcement officials, filed a brief this week supporting DeSantis.