(C) Florida Phoenix This story was originally published by Florida Phoenix and is unaltered. . . . . . . . . . . Judge blasts DeSantis over Warren suspension but says he’s powerless to reinstate him [1] ['Michael Moline', 'More From Author', '- January'] Date: 2023-01-20 A federal judge has excoriated Gov. Ron DeSantis for suspending Hillsborough County prosecutor Andrew Warren, concluding that the governor violated the First Amendment in ousting Warren because of political differences and the anticipated “political benefit” to the governor. However, in a ruling handed down Friday morning, U.S. District Judge Robert Hinkle concluded he lacked authority to give Warren what he wanted — reinstatement as state attorney — because he was bound by the Eleventh Amendment, which restricts federal courts’ power to decide disputes involving state governments. So, even though the First Amendment shielded Warren’s political beliefs and affiliations, it did not shield his exercise of prosecutorial discretion, including policies the governor, as a self-styled “law and order” advocate, found objectionable. “The governor violated the First Amendment by considering Mr. Warren’s speech on matters of public concern … as motivating factors in the decision to suspend him. The governor violated the First Amendment by considering Mr. Warren’s association with the Democratic Party and alleged association with Mr. [George] Soros as motivating factors in the decision,” Hinkle concluded. “But the governor would have made the same decision anyway, even without considering these things. The First Amendment violations were not essential to the outcome and so do not entitle Mr. Warren to relief in this action,” the judge added. “The suspension also violated the Florida Constitution, and that violation did affect the outcome. 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.” Political clash Warren, a Democrat, had been elected twice before DeSantis suspended him on Aug. 4 during a campaign-style news conference featuring a phalanx of sheriffs and other Warren critics. Warren is entitled to a hearing before the Florida Senate, but in the meantime has lost his job and income. The governor argued that Warren had signed statements promulgated by a group of progressive prosecutors called Fair and Just Prosecution opposing bringing charges in crimes involving abortion or transgender care. DeSantis also cited Warren policies establishing presumptions of nonprosecution against low-level crimes and those arising from bike or pedestrian stops; evidence produced at trial established a racial disparity in these arrests. All of that, DeSantis insisted, constituted blanket policies and therefore neglect of duty, a firing offense. Warren argued that he understood the abortion and transgender policies as an overall approach and not a blanket policy; the same went for the nonprosecution presumptions, as Warren explained in a local TV interview, and as his top aides also testified during a trial before Hinkle. His prosecutors continued to handle each case on its merits in the interest of public safety, he and his top aides testified. And the abortion and transgender statements never became office policy. None of that really mattered to the governor and his aides, Hinkle observed. “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. 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,” Hinkle wrote. Even so: “Running an office—making decisions—on the reform-prosecutor side of issues, rather than on the law-and-order side of issues, is conduct, not speech. And the governor is correct that when conduct is not protected, talking about it does not change that status — the talk may be protected, and ordinarily is, but the conduct is still conduct,” Hinkle wrote. Desultory investigation He noted that the entire affair began when DeSantis asked his legal aides whether any progressive prosecutors were serving in Florida. Larry Keefe, the former federal prosecutor turned DeSantis staffer, quickly identified Warren by asking his friends in law enforcement and through a Google search and targeted him, Hinkle wrote. “Mr. Keefe was determined to bring about Mr. Warren’s suspension. As he put it, ‘I wanted this to happen.’ He wanted it to happen primarily because Mr. Warren was a reform prosecutor of the kind targeted by the governor and Mr. Keefe from the outset.” Hinkle noted that one draft of Warren’s suspension order specifically mentioned his progressive approach and that he was loosely affiliated with Soros, the progressive financier. “There it was, stripped of pretext: a motivating factor in Mr. Warren’s suspension was that he was a ‘progressive prosecutor.’ He was being supported by a contributor to, of all things, the Democratic Party,” Hinkle wrote. The judge held Warren blameless in this episode. “The issue is close and could reasonably be decided either way,” Hinkle wrote. “The record includes not a hint of misconduct by Mr. Warren. So far as this record reflects, he was diligently and competently performing the job he was elected to perform, very much in the way he told voters he would perform it. He had no blanket nonprosecution policies. Any minimally competent inquiry would have confirmed this. The assertion that Mr. Warren neglected his duty or was incompetent is incorrect. This factual issue is not close.” But: “What mattered was not whether these were actually nonprosecution policies — they were not — but only whether the assertion could eventually be defended in the heavily partisan Florida Senate. … [T]he governor did what he had been looking to do from the day he assigned the project to Mr. Keefe: he took down a reform prosecutor.” [END] --- [1] Url: https://floridaphoenix.com/2023/01/20/judge-blasts-desantis-over-warren-suspension-but-says-hes-powerless-to-reinstate-him/ Published and (C) by Florida Phoenix Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/floridaphoenix/