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A judge says he can't reinstate Andrew Warren despite Gov. DeSantis violating the First Amendment

 Suspended Hillsborough State Attorney Andrew Warren addresses a federal judge's ruling that Gov. Ron DeSantis violated the First Amendment in suspending Warren during a news conference on Jan. 20, 2023.
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WUSF Public Media
Suspended Hillsborough State Attorney Andrew Warren addresses a federal judge's ruling that Gov. Ron DeSantis violated the First Amendment in suspending Warren during a news conference on Jan. 20, 2023.

A federal judge has ruled that Gov. Ron DeSantis violated the First Amendment in suspending Hillsborough State Attorney Andrew Warren, but he does not have the power to reinstate Warren.

Judge Robert Hinkle's 59-page ruling, which was issued Friday morning, said that DeSantis was wrong when he claimed that Warren had blanket policies not to prosecute certain cases when he suspended him in August.

Hinkle added that, under the U.S. Constitution, his court cannot give Warren his job back.

"In short, the controlling motivations for the suspension were the interest in bringing down a reform prosecutor — a prosecutor whose performance did not match the Governor’s law-and-order agenda — and the political benefit that would result," Hinkle wrote in his ruling. "The actual facts — whether Mr. Warren actually had any blanket nonprosecution policies — did not matter. All that was needed was a pretext to justify the suspension under the Florida Constitution.

"Mr. Warren was indeed a reform prosecutor, exactly as he told voters he would be. Disagreements about the proper prosecutorial approach are the stuff on which state-attorney elections properly turn. Disagreements like this are not the stuff on which suspensions properly turn."

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.”

Speaking outside his attorney's office in Tampa on Friday, Warren said DeSantis "abused his power" not for justice, but "in the pursuit of politics."

"The truth is that this suspension was never about the job that I did," Warren said. "As the judge wrote, 'the actual facts whether Mr. Warren actually had any blanket non prosecution policies did not matter.' The suspension was always a political stunt, a cheap trick to add one more misleading line to the governor's stump speech. "

The governor's office did not immediately return an emailed request for comment.

The Tampa Bay Times reports Hillsborough State Attorney Susan Lopez, who was appointed by DeSantis following the suspension, issued a memo to her staff Friday that didn't address the ruling. “Many people will want to talk about the suspension, the lawsuit, and the ruling,” it read. “We will instead continue to focus on the work of the agency.”

Warren filed a lawsuit after DeSantis suspended him for a "neglect of duty" in August, citing Warren's previous comments that he would not enforce any current or potential state laws regarding abortion or transgender health care.

In the suit, Warren — a twice-elected, Democratic state attorney in Hillsborough County, which includes Tampa — claimed DeSantis exceeded his powers and violated Warren's First Amendment right to free speech.

“I’m not going down without a fight," Warren, elected Hillsborough state attorney in 2016 and re-elected in 2020, said in a video announcing he would seek legal action.

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.

Information from The Associated Press was used in this report.


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Carl Lisciandrello is digital news editor of WUSF Public Media.