Ousted Prosecutor’s First Amendment Lawsuit Against Ron DeSantis Revived By Appeals Court

Free Speech

from the tinpottiest-of-dictators dept

Ron DeSantis continues to govern Florida as though the Constitution doesn’t exist. It may froth the voting base a bit, but it’s doing almost nothing for DeSantis, much less the people he’s supposed to be serving.

Law after unconstitutional law has been passed by the legislature, followed almost immediately by lawsuits and injunctions blocking the recently passed laws from being enforced. But nothing stops the stupid in Florida, especially when it’s being “led” by a wannabe fascist with presidential aspirations.

Here’s yet another loss at the hands of the courts for Governor DeSantis. Last summer, DeSantis began a purge of perceived political opponents, wielding his executive power to suspend prosecutors he viewed as insufficiently deferential to him and his ever-increasing pile of unenforceable laws. The prosecutors who were ousted were soon replaced with handpicked selections from the DeSantis’ lackey farm system.

State attorney Andrew Warren was one of several kicked to the curb by DeSantis. Warren’s mistake? He was elected (and re-elected in 2020) by constituents who apparently supported his criminal justice reforms. DeSantis doesn’t care for reformers, though. Here’s how Warren ended up on the governor’s shit list, as summarized by C.J. Ciaramella for Reason.

DeSantis suspended Warren in August of 2022 for alleged neglect of duty after Warren signed letters saying he would not enforce state laws restricting abortion or transition-related medical care to transgender minors. The DeSantis administration cited those letters, as well as Warren’s non-prosecution policies for certain low-level crimes, such as “resisting without violence” charges—an offense that had become derisively known as “biking while black” because it was overwhelmingly applied against black bicyclists. The move came after the Justice Department released a 2016 report that found that 75 percent of bicyclists stopped by Tampa police were black.

The lower court had problems with DeSantis’ actions, stating that it believed the firing was politically motivated, rather than truly justified. Nonetheless, it ruled that there might be just enough justification to permit firing Warren for saying things DeSantis didn’t like.

That miscarriage of justice has now been overturned. The Eleventh Circuit Court of Appeals has reversed the lower court’s decision, saying this looks way more like unconstitutional retaliation, rather than a truly justified firing.

At least one of the reasons cited by DeSantis for suspending Warren clearly implicates protected speech, as the Eleventh Circuit points out. The letters signed by Warren were written and published by nonprofit Fair and Just Prosecution. Although he signed the letters, none of statements made became part of his office’s policies. On top of that, his opposition to abortion restriction (as stated in the letters) was clarified when the Florida legislature passed its anti-abortion law. In a television interview, Warren said he disagreed with the law, but would respect court rulings on its legality.

DeSantis’ prosecutor purge began with his asking one of his advisors (Larry Keefe) whether any state prosecutors “were not enforcing the law.” Keefe started talking to law enforcement officials (including police union executives). Lots of officials at different agencies made vague statements about Warren being “difficult to work with” and not enthusiastic enough about prosecuting low-level crimes. Lots of stuff was said, but no one could really point to anything in particular, other than the fact that cops felt Warren was a “progressive” and therefore was not a good prosecutor.

Keefe shifted the focus of his half-assed investigation. From the decision [PDF]:

During his inquiry, Keefe found online the four advocacy statements that FJP had published and Warren had signed—regarding transgender care and abortion, as well as election security and capital punishment. Keefe never looked to see whether Warren’s office had adopted these statements as policy. It had not. He never determined whether Warren’s office had encountered a case about transgender care or abortion. It had not.

Keefe’s search also revealed an article about Democratic billionaire George Soros’s financial support of “progressive prosecutors.” The article noted that Soros had donated to the Florida Democratic Party, which in turn contributed to Warren’s campaign. Based on this fact and his other research, Keefe concluded that Warren “had ceded his power and authority as the [s]tate [a]ttorney in Tampa to be an expresser or a conduit for Mr. Soros’s world views on criminal prosecution.”

During his inquiry, Keefe never communicated with Warren or anyone in his office. He spoke to only two people who knew anything about how Warren’s office operated: [Hillsborough County Sheriff] Chronister and [former Tampa police chief Brian] Dugan. They told him about Warren’s prosecutorial decisions, but Keefe never focused on those decisions. He concerned himself instead with the advocacy statements Warren had signed.

Shortly after this, DeSantis issued an executive order suspending Warren, citing a supposed “blanket non-prosecution policy” and the statements Warren had made on the subjects of abortion and transgender care. The order included the George Soros stuff Keefe had ginned up. Removed from the final draft were the statements Warren had made saying he would exercise individual discretion in abortion cases, thus implying Warren had extended his “blanket non-prosecution policy” to cover the recently passed abortion ban.

DeSantis added to his printed lies and half-truths by claiming his office had spoken to “line prosecutors across the state,” something that never actually happened.

We’re pretty sure this is nothing more than politically motivated retaliation, says the Appeals Court. It sums things up by saying the lower court got everything right… everything except the part where it decided DeSantis could suspend the prosecutor for his own political benefit without troubling the Constitution.

The district court’s findings show that DeSantis never suspended Warren because DeSantis disagreed with his actual office policies or case decisions. Keefe never looked for deficient performance or neglect of duty; instead, he looked for indications “associated with reform prosecutors.” Keefe never sought information about Warren’s policies or details of his case decisions because “he already knew all he needed to know: Mr. Warren was the leading Florida reform prosecutor.” Keefe urged the suspension along because Warren “was a reform prosecutor.” On these facts, DeSantis based Warren’s suspension on his reputation as a “reform prosecutor.” DeSantis’s political benefit was solely derived from Warren’s political ideology.

The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit.

Back down it goes. The lower court has been corrected on this error. Now, the burden is back on DeSantis to prove this wasn’t a politically motivated ousting of an elected official he (and his office) just didn’t like. Good luck with that. There’s plenty on the record strongly indicating otherwise.

Filed Under: 11th circuit, 1st amendment, andrew warren, florida, purge, retaliation, ron desantis