In dismissing the action after a bench trial, Northern District of Florida Judge Robert Hinkle was harshly critical of Gov. Ron DeSantis’ motive for ousting the two-time elected reform state’s attorney, Andrew Warren.

Last January, U.S. District Judge for the Northern District of Florida Robert Hinkle sharply criticized the DeSantis administration’s partisan motivations for suspending Warren, formerly the Hillsborough County State Attorney and one of the most prominent progressive prosecutors in the state.

“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 order. “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.”

And yet, Judge Hinkle dismissed the § 1983 action, concluding that DeSantis would have ousted Warren anyway for non-protected reasons. The Eleventh Circuit, by Judge Jill Pryor, reversed, holding that wasn’t good enough.

“The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit,” U.S. Circuit Judge Jill Pryor wrote. “On remand, DeSantis must prove that unprotected activity, such as Warren’s actual performance or his policies, motivated him to suspend Warren.”

For Warren, this is both good news and bad. On the one hand, his suit survives dismissal, which is better than being tossed. On the other, DeSantis’ inability to limit his anti-woke rhetoric may not be sufficient to save Warren from the alternative justification for his ouster, that he, as a reform prosecutor, refuses to do his job and enforce laws with which he disagrees.

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 argument that prosecutors are entitled to exercise discretion in the performance of their duty has been extended from individualized cases to categorical refusal to adhere to the laws as duly enacted by the legislatures. Indeed, they are elected by their constituents upon the promise that they will refuse to do so. But does the fact that local voters agree with a progressive prosecutor’s views on what laws are good and what are not suffice to override the legislature’s determination of what conduct should be criminal?

Had that been the crux of DeSantis’ actions, there would likely have been a very different outcome. DeSantis, however, demonstrated a lack of impulse control that muddied the discharged.

The 11th Circuit found that Warren’s signing of letters was protected First Amendment activity. It also found that the record established during the bench trial in Warren’s lawsuit showed that the state investigation into Warren’s office was sloppy and minimal at best; DeSantis’ overriding motivation was the political benefit of ousting an outspoken prosecutor with a contrary ideology.

“The district court’s findings show that DeSantis never suspended Warren because DeSantis disagreed with his actual office policies or case decisions,” Pryor wrote.

In Florida, state’s attorneys are elected officials. They campaign for office based upon their political and ideological views, about the nature of prosecution and anything else they believe to be relevant to the voters. Warren ran and Warren won. Warren spoke, and thereupon the voters spoke. They elected Andrew Warren as state’s attorney for the Thirteenth Judicial District. Elections have consequenes.

But that does not mean that Warren has a constitutional right to refuse to fulfill the duties of the position when he doesn’t like the laws as enacted by the state. It’s a conflict, and one that has yet to be adequately resolved. The downside of this decision is that if DeSantis can present a sufficient case that the ouster of Warren was not primarily due to his ideological views or ties to a certain major Democratic donor, but to his refuse to perform the duties of the job when he and the lege don’t see eye to eye, it will be sufficient basis for ousting a progressive prosecutor.

While it would usually be fairly easy to put together a case based upon facts rather than First Amendment violations for disagreeable speech, it will likely remain a challenge for DeSantis given his rhetoric about cleansing state government of prosecutors who fail to adhere to his ideology. Once tainted, it will come back to bite DeSantis in the butt as demonstrating that his motivation is not substantive, the failure to perform the functions of the job, but political. the expression of views which are contrary to the governor’s.

Even though DeSantis may well have a fairly solid case based upon the facts of Warren’s refusal to prosecute a law because it offends his ideology, if the primary motive was to punish Warren for being an open and unabashed progressive, the job performance argument, ironically, may not save DeSantis from his own mouth.