Andrew Warren ruling: A deep dive into what the judge was thinking

How did U.S. District Judge Robert Hinkle rule that DeSantis violated both the First Amendment and the Florida Constitution during the suspension and then refuse to reinstate Warren?
Former State Attorney Andrew Warren prepares to speak during a news conference Friday, Jan. 20, 2023 in Tampa. U.S. District Judge Robert L. Hinkle ruled that DeSantis violated the state constitution when he suspended Warren but stopped short of returning Warren to office.
Former State Attorney Andrew Warren prepares to speak during a news conference Friday, Jan. 20, 2023 in Tampa. U.S. District Judge Robert L. Hinkle ruled that DeSantis violated the state constitution when he suspended Warren but stopped short of returning Warren to office. [ CHRIS URSO | Times ]
Published Jan. 21|Updated Jan. 21

TALLAHASSEE — U.S. District Judge Robert Hinkle issued a ruling Friday that appeared full of contradictions.

He lambasted Gov. Ron DeSantis for violating the First Amendment of the U.S. Constitution and for making a flimsy case for ousting Hillsborough County State Attorney Andrew Warren.

But the judge decided he couldn’t intervene: It’s a state issue. Not the purview of a federal judge.

So DeSantis took his lumps, but won. Here’s how Hinkle arrived at his decision:

1. Warren made a limiting legal argument

When DeSantis suspended Warren, he did so under the powers in the Florida Constitution, which allows the governor to suspend public officials for neglect of duty or incompetence.

In his order, DeSantis cited Warren’s policy of not prosecuting certain low-level offenses and two public pledges he signed by a progressive prosecution organization, which included the vows not to prosecute abortion-related crimes or crimes relating to transgender care.

Warren had a blanket policy of not prosecuting certain crimes, which amounted to “neglect of duty” and “incompetence,” DeSantis’ order claims.

To challenge his suspension, Warren chose a strategy that DeSantis’ lawyers acknowledged they hadn’t considered.

Instead of challenging his suspension in state court or through a trial in the Florida Senate, Warren sued in federal court.

Warren argued that DeSantis violated his right to free speech under the First Amendment of the U.S. Constitution. The public statements he signed, Warren argued, were political, and not the policy of his office.

Political speech is protected by the First Amendment. Official actions of a public official are not.

By taking the case to federal court, Warren avoided a trial in the Republican-dominated Senate, which he would have lost. He avoided arguing his case before the Florida Supreme Court, which is stacked with DeSantis appointees. (Hinkle was appointed to the federal bench by former President Bill Clinton, a Democrat.)

But taking the case to the federal level limited him, too.

The 11th Amendment to the U.S. Constitution prohibits federal courts from forcing state actors to follow state laws. So if a federal judge found that DeSantis’ reasoning for suspending Warren was bogus, there was nothing the judge could do about it.

By arguing that his right to free speech was violated, Warren would have to show that the real reason DeSantis suspended him was because of his protected political speech.

2. Why did DeSantis suspend Warren?

Hinkle wrote that a three-day trial and numerous depositions showed that six factors played a part in DeSantis’ decision. They were:

1. Warren was a “reform” prosecutor.

2. Warren advocated for “reform” policies by, among other things, associating with Fair and Just Prosecution, a coalition of progressive-minded prosecutors.

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3. Warren signed a pledge by Fair and Justice Prosecution that included a vow to “refrain from prosecuting some kinds of abortion cases.”

4. Warren adopted office policies of not prosecuting arrests from bicycle and pedestrian stops and certain other low-level offenses.

5. Warren is a Democrat and had received funding, indirectly, from liberal billionaire George Soros.

6. DeSantis “anticipated political benefit” from suspending Warren.

The legal question, Hinkle said, then came down to: Which of those six factors amounted to protected speech under the First Amendment?

Hinkle wrote that the First Amendment would protect Warren’s support of reform policies and his association with Soros.

But the judge determined that the other factors involved Warren’s official duties and were unrelated to any constitutional protections related to free speech. Therefore, they were fair game for DeSantis, given Warren’s strategy limiting his defense to constitutional protections. Even if a critical factor was that DeSantis ousted Warren for a political benefit, that “was not a First Amendment violation,” Hinkle wrote.

3. How Hinkle arrived at his decision

Warren’s argument to get his job back, which relied solely on constitutional protections, was rendered moot when Hinkle concluded DeSantis would have suspended him regardless of the abortion statement or Warren’s liberal views on prosecutorial issues.

What motivated DeSantis to suspend Warren started with an investigation by one of his top advisers, his public safety czar, Larry Keefe, Hinkle determined.

In December of 2021, after months of railing against “reform” prosecutors in California and other states, DeSantis asked Keefe whether there were prosecutors who were not enforcing the law in Florida.

“Transgender and abortion issues had nothing to do with it,” Hinkle said. “Mr. Keefe was not assigned to look for prosecutors who had made statements about reform-prosecutor issues; it was a search based primarily on what prosecutors had done, not what they had said.”

Keefe quickly identified Warren as the primary “reform” prosecutor in Florida by talking exclusively to Republicans and others with similar views. It wasn’t until late in Keefe’s investigation that he discovered Warren’s signed statements.

“The (Fair and Just Prosecution) statements were a way to justify a decision already in the works on other grounds,” Hinkle wrote.

Keefe made his case for suspending Warren to DeSantis’ general counsel, Ryan Newman, who then convinced DeSantis.

“The Governor did what he had been looking to do from the day he assigned the project to Mr. Keefe: He took down a reform prosecutor,” Hinkle wrote.

4. DeSantis violated the First Amendment and the Florida Constitution

DeSantis did violate the First Amendment by merely considering the fact that Warren signed on to other Fair and Just Prosecution statements and was linked to Soros, Hinkle wrote.

And DeSantis’ justification for removing Warren under the Florida Constitution — that he had “blanket” policies of not enforcing certain crimes — was disproven, Hinkle concluded.

The abortion statement never was office policy. In all situations, prosecutors had discretion to charge crimes. Even the policy of not prosecuting crimes for bicycle stops could be, and was, overridden if prosecutors believed it was in the public’s interest.

“He had no blanket nonprosecution policies. Any minimally competent inquiry would have confirmed this,” Hinkle wrote. “The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close.”

Hinkle wrote that the evidence was so overwhelming that DeSantis should reinstate Warren. But because of the 11th Amendment, there was nothing Hinkle could do about it.

“Warren cannot obtain relief in this court on the ground that his suspension violated the Florida Constitution,” he wrote.