DeSantis’ Motive Key in Appeals Fight With Suspended Prosecutor

A panel of federal appellate judges in Montgomery, Ala., sought during oral arguments to tease out whether Florida Gov. Ron DeSantis’ decision to suspend a state prosecutor was primarily motivated by his job performance or by his constitutionally protected statements.

Three judges from the US Court of Appeals for the Eleventh Circuit heard arguments in the case Tuesday in Andrew Warren’s bid for a court order reinstating him. Warren is asking the Eleventh Circuit to revive his case after a federal district court dismissed it in January.

The elected Democratic prosecutor argues the Republican governor violated his First Amendment rights by suspending him for speech and related conduct that were political in nature, including his signature on a policy group’s statement from dozens of prosecutors vowing not to enforce abortion bans.

DeSantis suspended him last August, citing the abortion statement and other lenient or nonenforcement policies toward certain low-level crimes. The case is part of a broader backlash by Republican governors and state legislatures against local prosecutors who support progressive reforms, such as not prosecuting personal possession of marijuana or crimes such as shoplifting.

“It was all about performance and conduct, not viewpoint,” Judge Kevin C. Newsom said at the hearing, pointing to the district court’s findings and challenging Warren’s attorney on whether or how the Eleventh Circuit might reach a different conclusion.

David A. O’Neil of Debevoise & Plimpton LLP in Washington D.C., who argued the case for Warren, disagreed with Newsom’s reading of the lower court’s decision. The district court mistakenly labeled certain motivations as conduct that should be considered speech, but it also found most of the governor’s stated reasons for suspending Warren were justifications for his desire to fire a “woke prosecutor” for his own political benefit, he said.

“The obvious explanation here is the right one: the governor didn’t like what Mr. Warren said” and so he came up with a pretext to punish him, O’Neil told the judges. If Warren’s suspension were truly a matter of misconduct, the governor should have pointed to specific cases where Warren failed to do his duty as a prosecutor, he said. The governor hadn’t cited any such cases throughout the litigation, O’Neil said.

Warren also has petitioned the Florida Supreme Court to order him reinstated.

The case hinges largely on how courts apply First Amendment protections for government employees, while also striking at the issue of prosecutorial discretion.

Warren argues he was within his authority as a prosecutor to make decisions prioritizing which kinds of cases to pursue and allocating the limited resources of the prosecutor’s office. DeSantis argues Warren’s blanket refusal to enforce an entire category of Florida statutes amounts to a veto of that law within the prosecutor’s district, overriding the role of the state legislature.

Political Benefit

The Eleventh Circuit judges also questioned how they should handle the district court’s finding of DeSantis’ political motivations, and whether that establishes a strong enough First Amendment violation for the appeals court to find in Warren’s favor.

“The political benefit motive is a closer case,” Judge Jill A. Pryor said.

Henry C. Whitaker, Florida’s solicitor general who argued the case for DeSantis, said the governor’s motivation doesn’t undercut his reasons for suspending Warren due to job performance—specifically Warren’s policy of not enforcing certain kinds of crimes.

“There’s nothing wrong with taking action on non-First Amendment-protected conduct just because his supporters might approve of it,” Whitaker told the judges.

But O’Neil argued that an elected official such as Warren deserves a “very wide berth around what he can say” before facing discipline, more so than other government employees. DeSantis’ position suggests he could remove any elected prosecutor who runs for office on a progressive reform agenda as soon as they take office, he said.

“That fundamentally defeats the purpose of elections,” he said.

US District Judge Anne C. Conway heard the case alongside Newsom and Pryor.

Also representing Warren are attorneys from Debevoise & Plimpton LLP, Older Lundy Koch & Martino, and Perkins Coie LLP.

In addition to the Florida AG’s office, lawyers from GrayRobinson PA represent DeSantis.

The case is Warren v. DeSantis, 11th Cir., No. 23-10459, oral arguments held 5/2/23.