DeSantis administration rebukes 11th Circuit decision on Andrew Warren case

by | Jan 26, 2024

Gov. Ron DeSantis’ administration is seeking a full rehearing by the 11th Circuit Court of Appeals after a decision that favored suspended Hillsborough County State Attorney Andrew Warren, challenging the panel’s interpretation of First Amendment rights and asserting the governor’s authority in managing state officials.

Gov. Ron DeSantis’ administration has requested a full rehearing by the full 11th Circuit Court of Appeals following a decision that favored suspended Hillsborough County State Attorney Andrew Warren.

Florida Solicitor General Henry Whitaker, on behalf of the governor, filed a petition on Thursday for an “en banc” hearing before the entire 11th Circuit Court of Appeals. The petition disputes the panel’s January decision to send the case back to a lower court on remand, arguing that it contradicts existing legal precedents and affects Florida’s authority over its officials. The petition contends that the decision misinterprets the First Amendment, particularly in the context of a prosecutor’s obligation to enforce the law.

“As part of the Governor’s supreme executive power and broad authority to take care that the laws be faithfully executed, he may suspend from office any state officer not subject to impeachment for neglect of duty of incompetence,” the petition reads, citing state statute. “The panel opinion strikes an unprecedented blow against a state’s sovereign interest in managing its officials and ensuring the faithful execution of its laws.”

The administration’s petition comes after Warren and his legal team received a favorable decision from the 11th Circuit Court of Appeals, which vacated a lower court’s ruling on his suspension. The appellate court opined that Warren, who advocated for various reforms during his tenure, was targeted by DeSantis, suspended via Executive Order, and subsequently replaced with a political ally of the governor.

“The district court erred in concluding that the First Amendment did not protect the activities behind two of the other factors,” the appellate court’s filing reads. “We therefore vacate and remand. On remand, the district court should reconsider whether DeSantis would have made the same decision based solely on the unprotected activities.”

Immediately following his ousting in 2022, Warren filed a lawsuit alleging that DeSantis suspended him in retaliation for First Amendment-protected activities, primarily his policies and advocacy. Following a bench trial, a Tallahassee district court identified six factors that motivated DeSantis to suspend Warren. Despite finding that Warren’s protected activities had influenced DeSantis’ decision to suspend him, it ultimately rejected Warren’s claims, reasoning that even if the protected activity were set aside, DeSantis would have suspended Warren based on other unprotected activities, ostensibly reaching the conclusion that DeSantis had additional, non-First Amendment-related reasons to suspend Warren, which the court found valid.

The 11th Circuit opinion now calls for a reevaluation of whether DeSantis’ decision to suspend Warren would have been the same, absent the consideration of Warren’s First Amendment activities. The court further addressed DeSantis’ argument regarding probable cause for Warren’s suspension, decisively concluding that there never was a probable cause to justify the suspension.

In August 2022, DeSantis accused Warren of incompetence and abandonment of duty when he was dismissed from office. Notably, the governor claimed that Warren pledged not to enforce the state’s recently passed abortion law, as well as signed letters stating that he would not enforce laws prohibiting sex changes for minors.

The suspension has been highly politicized and seen as a flagship moment of action for DeSantis, who directly referenced his removal of Warren during a Republican primary debate.

The 11th Circuit further questioned whether the governor’s mention of Warren’s suspension during a GOP primary debate spurred additional questions as to whether the removal was motivated by political beliefs or affiliations, potentially infringing on their First Amendment rights to freedom of speech and association.

“During a recent presidential debate, DeSantis lamented that, in his view, other contenders for the Republican nomination weren’t “willing to stand up and fight back against what the Left is doing to this country.” As evidence that he would do so, DeSantis boasted that … he had “beat[en] George Soros when [he] removed two of his radical district attorneys,” the opinion states. “Andrew Warren was one of the DAs whom DeSantis removed. The question before us today is whether, in doing so, DeSantis violated the First Amendment.”

In a September 2022 interview with Warren, he criticized the timing of his suspension, suggesting that it was predicated on what he referred to as DeSantis’ political ambition to run for president.

“The Governor has made clear that he is focused not on the needs of Floridians, not on the safety of our communities … but on running for President in 2024,” Warren said. “That’s what this is about. A political stunt to further his political ambition.”


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