Federal appellate court judges kept the case of former state attorney Andrew Warren (D) alive Wednesday, prolonging the fight of one of the prosecutors Florida Governor Ron DeSantis (R) suspended for various “woke” offenses.
DeSantis suspended Warren, known as a “reform” or progressive prosecutor, for a series of actions, including his signing of a statement the day of the Dobbs decision that asserted prosecutors shouldn’t criminalize personal medical decisions. Other actions included setting office policies to generally not prosecute low-level offenses — put in place during the COVID-19 pandemic, when trial delays were resulting in prolonged detentions — and for noncriminal bike and pedestrian stops, which he found to disproportionately target people of color.
“Based on Warren’s policies and advocacy, Florida Governor Ron DeSantis suspended him from office and appointed a political ally to replace him,” the judges wrote.
Warren then sued, arguing that DeSantis had punished him for exercising his First Amendment rights.
A district court found that some of DeSantis’ reasons for ousting Warren — his political affiliation as a Democrat and advocacy for criminal justice reform — were protected speech, but that the other factors weren’t and blessed DeSantis’ suspension.
The 11th Circuit panel Wednesday extended the factors covered by free speech to Warren’s support of the statement about prosecuting abortion cases and his protection from DeSantis suspending him for his own political benefit.
The panel then kicked the case back down to the district court to consider whether the unprotected factors, the low-level offenses and bike stop policies plus Warren’s job performance, were enough alone to motivate DeSantis to suspend Warren.
While Warren’s suspension was DeSantis’ first, he also suspended Monique Worrell, state attorney for the region including Orlando, last year. Worrell is currently challenging her suspension before the Florida Supreme Court.
At least one other Republican governor has followed DeSantis’ lead this past year in seeking control over prosecutors whose enforcement they don’t like. In Georgia, Governor Brian Kemp (R) signed a bill into law last spring that created a board with authority to investigate and oust local prosecutors. Republicans in the state legislature are now threatening to use a new version of that commission to go after Fulton County District Attorney Fani Willis (D).
The 11th Circuit filing details DeSantis tasking senior advisor Larry Keefe with sniffing out progressive prosecutors he could target. Keefe asked various sheriffs and others in law enforcement, who pointed him to both Warren and Worrell.
The ruling even tracks the drafting of the executive order suspending Warren, including that initially, lines were included about Warren’s televised comments pledging to make case-by-case determinations with abortion prosecutions, but were ultimately cut.
Now, the case heads back down to district court.
“The First Amendment is an inconvenient thing. It protects expression that some find wrongheaded, or offensive, or even ridiculous,” 11th Circuit Judge Kevin Newsom, a Donald Trump appointee, wrote in concurrence. “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.”
Read the ruling here: