During a nearly two-hour hearing in Tallahassee, Senior U.S. District Judge Robert L. Hinkle said he would like to avoid the potential consequences of reinstating Warren, only to potentially be overturned by an appeals court. “The public is not being served by yo-yoing this office,” Hinkle said. “It is everyone’s intention that this be done as soon as possible.” Hinkle said he wanted a trial within the next four months to settle the matter “once and for all.” The decision, which will be formalized in writing, was welcomed by Warren and his lawyers. “We look forward to a trial on the merits,” Warren said after the hearing. “We look forward, as the judge said, to the governor having an opportunity to come here to justify what he did.” The two-time state’s attorney-elect was escorted from his downtown Tampa offices Aug. 4 by an armed sheriff’s deputy. Gov. Ron DeSantis accused him of refusing to enforce abortion and transgender health care laws and of failing to prosecute some low-level, non-violent crimes. DeSantis had cited two pledges Warren signed with other attorneys general across the country: one refusing to criminalize gender-affirming health care for transgender people and the other agreeing to refrain from prosecuting those who provide or seek abortions. The governor also questioned Warren’s office policies on avoiding charges for certain low-level crimes, including trespassing and disorderly conduct, and for arrests that occur when an officer stops a bicyclist or pedestrian — known locally as “bike while black”. Warren, a progressive Democrat, argued that his removal was a political ploy by the conservative governor with whom he had previously clashed. He said DeSantis violated his free speech rights and exceeded his authority. Warren sued DeSantis in federal court, claiming his First Amendment rights were violated. He asked the judge for a preliminary injunction to reinstate him. During Monday’s hearing, Hinkle wrestled with the central question: When Warren signed the non-prosecution statements, did that protect free speech? Or was he announcing a policy decision for his office? Warren said he has never made charging decisions in such abortion or transgender cases, and his office’s guidelines were not blanket policies. Prosecutors working under him had to apply their judgment and discretion to individual cases, his lawyer argued Monday. But Florida Solicitor General Henry Whittaker, who represents DeSandis and the state, said Warren overstepped the mark. Warren is allowed to make statements on public issues and pointed to Warren’s tweets criticizing the Supreme Court’s decision to overturn Roe v. Wade this year. But refusing to prosecute certain crimes is not protected speech, he said.
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Want more of our free, weekly newsletters in your inbox? Let’s start. Explore all your options “Andrew Warren has no First Amendment right to say he’s not going to do his job,” Whittaker said. When a state’s attorney speaks, they represent the state, and their refusal to prosecute certain cases suggests they have a gross misunderstanding of their duties that deserves removal, Whitaker said. “You really think the governor is the boss of the state attorney,” Hinkle told Whitaker. Not exactly, replied Whittaker. But state attorneys are still state employees, he said, and the governor can make sure they help each other on different cases or reassign them to other circuits. “The governor has absolute oversight of the state’s attorneys,” Whitaker said. Hinkle indicated that a trial would get to the bottom of it if there were other reasons for Warren’s removal. He compared the situation to that of a wrongful termination lawsuit, in which the employer will give a stated reason for firing someone. After a trial, however, it often turns out that the stated reason was false, he noted. Hinkle said that for Monday’s hearing, he had only a few pieces of evidence about Warren’s removal: the written order issued by DeSantis, the news conference DeSantis held on Aug. 4 and a tweet released the night before by the spokesman of warning “Prepare for the liberal media meltdown of the year.” The press conference was a raucous affair, with DeSantis flanked by police chiefs airing complaints about Warren on specific occasions and a large crowd cheering the governor’s comparisons to rogue prosecutors in California. Hinkle said he attended the event and indicated there were other reasons for Warren’s removal. “It seems to me … that it’s full of policy disagreements,” Hinkle said of the news conference. Hinkle and lawyers on Monday appeared to agree they were in uncharted legal territory, with no previous examples of a governor suspending another constitutional official from ruling in federal court on free-speech grounds. They cited the case of former Orange-Osceola County State’s Attorney Aramis Ayala who pledged not to impose the death penalty. Then-Gov. Rick Scott reviewed potential death penalty cases in another circuit, but did not suspend it. Hinkle repeatedly cited the case of Julian Bond, a black civil rights activist who was elected to the Georgia House of Representatives in 1965. In a press conference before taking office, Bond said he approved a public statement against of the Vietnam War released by his previous organization, the Student Nonviolence Coordinating Committee. During the interview, Bond said that he was a pacifist who was against all war. The Georgia House of Representatives argued the remarks were against his oath of office and voted to bar him from the chamber, sparking a legal battle that went to the U.S. Supreme Court. The court unanimously ruled in favor of Bond, saying that legislatures can impose oaths but cannot limit lawmakers’ speech on policy matters. They ordered Bond to sit down.
