DeSantis violated U.S. and state constitutions, but prosecutor he ousted won’t be reinstated, judge rules

TALLAHASSEE, Fla. —  A federal judge ruled Friday that Florida Gov. Ron DeSantis violated the 1st Amendment and the Florida Constitution by removing an elected state prosecutor, but that the federal courts lack the power to reinstate him.

In an order dismissing the case, U.S. District Judge Robert Hinkle wrote that federal law prevents him from returning elected prosecutor Andrew Warren to office in a lawsuit that centered on state law.

DeSantis suspended Warren last year over the elected prosecutor’s signing of statements that said he would not pursue criminal charges against seekers or providers of abortion or gender transition treatments, as well as policies about not charging people with some minor crimes.

Warren — a twice-elected, Democratic state attorney in Hillsborough County, which includes Tampa — sued the governor in federal court to get his job back.

“The idea that a governor can break federal and state law to suspend an elected official should send shivers down the spine of anyone who cares about free speech, the integrity of our elections or the rule of law,” Warren said at a brief news conference Friday, before telling reporters, “This is not over.”

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In testimony, Warren argued that he was suspended over his personal political positions on abortion and transgender issues. He said his office applied prosecutorial discretion over whether to bring charges in all cases, considering public safety and other matters.

Judge Hinkle’s decision largely sides with Warren’s arguments but finds that the case is effectively a state matter that cannot be resolved by a federal judge.

“Florida Governor Ron DeSantis suspended elected State Attorney Andrew H. Warren, ostensibly on the ground that Mr. Warren had blanket policies not to prosecute certain kinds of cases. The allegation was false,” Hinkle wrote. “Mr. Warren’s well established policy, followed in every case by every prosecutor in the office, was to exercise prosecutorial discretion at every stage of every case.”

He added: “But the Eleventh Amendment prohibits a federal court from awarding declaratory or injunctive relief of the kind at issue against a state official based only on a violation of state law.”

DeSantis’ office did not immediately return an emailed request for comment.

The governor had accused Warren of incompetence and neglect of duty, arguing that the prosecutor was picking and choosing which laws to enforce, citing in his executive order the non-prosecution of crimes such as “trespassing at a business location, disorderly conduct, disorderly intoxication, and prostitution.”

DeSantis’ executive order also cited Warren’s endorsement of statements from prosecutors across the country pledging to not bring criminal charges against people seeking, providing or supporting abortion access — and opposed the criminalization of gender transition treatments.

Florida has a 15-week abortion ban that took effect last year. The state does not have a law criminalizing gender transition treatments. Warren said his office had not received any criminal referrals related to the new abortion law or gender transition treatments.

The suspension positioned DeSantis, a potential 2024 GOP presidential candidate, at the forefront of a wave of Republican officeholders targeting progressive prosecutors who exercise discretion over whether to charge people with what they deem to be low-level offenses.