Defendant's Attorney: Henry Charles Whitaker, et al.

Description: Tampa, Florida civil litigation lawyers represented Plaintiff who sued the Defendant on a civil rights Violation theory.

Voters twice elected Andrew Warren to serve as the state attorney for Florida’s Thirteenth Judicial Circuit, which encom-passes Hillsborough County, whose seat is Tampa. Florida state attorneys are state officers, locally elected to four-year terms. State attorneys prosecute all criminal actions in the state courts within their circuit. Fla. Stat. § 27.02.

DeSantis suspended Warren in August 2022, during Warren’s second term. Florida’s constitution permits the governor to suspend unimpeachable state officers for enumerated reasons, such as neglect of duty or incompetence. The governor suspends only; the Florida Senate removes or reinstates the officer.


Voters twice elected Andrew Warren to serve as the state attorney for Florida’s Thirteenth Judicial Circuit, which encompasses Hillsborough County, whose seat is Tampa. Florida state attorneys are state officers, locally elected to four-year terms. See Fla. Const. art. V, § 17; Fla. Stat. § 27.01. State attorneys prosecute all criminal actions in the state courts within their circuit.

DeSantis suspended Warren in August 2022, during Warren’s second term. Florida’s constitution permits the governor to suspend unimpeachable state officers for enumerated reasons, such as neglect of duty or incompetence. The governor suspends only; the Florida Senate removes or reinstates the officer.

As state attorney, Warren adopted policies to provide consistency and guide over 100 attorneys in his office as they prosecuted between 50,000 and 60,000 cases annually. Many policies concerned specific crimes, like Warren’s policy to aggressively prosecute domestic violence offenders. Other policies provided overarching guidance, like his policy to exercise individualized dis-cretion in every case. Three policies are relevant to this appeal.
The first is Warren’s Discretion Policy. Warren prioritized exercising individualized discretion in prosecutorial decisions from his first day in office. He formalized that priority as policy early in his second term. The Discretion Policy provided examples to guide prosecutorial decisions. But it stressed that “[c]asespecific decisions must be made according to the unique facts and circum-stances of the case. Therefore, it is impossible to provide examples that dictate the appropriate decision in every situation across a
]category of cases.”

The Discretion Policy complemented Warren’s other poli-cies, including those that created presumptions about exercising discretion in certain cases. One such policy, for example, created a presumption that prosecutors would seek at least the mandatory minimum sentence in felon-in-possession-of-firearms cases. Prose-cutors could document substantial mitigation to rebut the pre-sumption, allowing them to offer plea deals below the mandatory minimum.
The second policy is Warren’s Low-Level Offense Policy, which influenced DeSantis’s suspension decision. The Low-Level Offense Policy listed charges that the office would presumptively not prosecute. These offenses were “low level” because most had only a 60-day maximum sentence. Many offenders served even less
time. Warren designed the policy to mitigate COVID-19’s effects: the virus delayed arrestees’ initial court appearances and caused backlogs that resulted in extended detentions. These delays and backlogs raised potential constitutional concerns under the Sixth Amendment’s Speedy Trial Clause and the Eighth Amendment. They also implicated fairness principles. By eliminating or reducing prosecutions for low-level offenses, the policy would alleviate those concerns. Although designed to address those concerns, the policy included no sunset provision for when the virus’s effects dwindled, and thus it continued in force. Yet even when the pol-icy’s nonprosecution presumption was in force, it could be—and in fact was—overcome based on public safety concerns.

The third policy is Warren’s Bike Policy, which also influ-enced DeSantis’s suspension decision. The Bike Policy created a nonprosecution presumption in cases resulting from noncriminal bike and pedestrian violations. This policy stemmed from commu-nity input; it addressed the disproportionate racial impact of bike and pedestrian stops. Like the Low-Level Offense Policy, this pol-icy’s nonprosecution presumption could be overcome based on public safety concerns. And, in fact, it was. Days after Warren im-plemented the Bike Policy, his office filed drug trafficking and par-aphernalia possession charges resulting from a civil bike stop.
Warren adopted the Low-Level Offense Policy and the Bike Policy through his policymaking process. Both policies received outside input, for example. Community law enforcement partners, including the Tampa Police Department and the Hillsborough USCA11 Case: 23-10459 Document: 89-1 Date Filed: 01/11/2024 Page: 6 of 59
23-10459 Opinion of the Court 7

County Sheriff’s Office, discussed the Low-Level Offense Policy with Warren’s office. Law enforcement partners also considered the Bike Policy. Hillsborough County Sheriff Chad Chronister told Warren that the Sheriff’s Office rarely conducted bike stops. In-terim Tampa Police Chief Ruben Delgado described the Tampa police force’s effort to reduce discriminatory stops. He supported the policy. Tampa Police Chief Mary O’Connor, who replaced Del-gado, appreciated being informed of the policy but offered no sug-gestions.
Neither the Low-Level Offense Policy nor the Bike Policy precluded prosecutors from exercising individualized discretion. Although the policies created presumptions, they specified that a case’s circumstances could overcome those presumptions.

Outcome: Defendant's motion to dismiss granted.

We vacate and remand to the district court for further proceedings consistent with this opinion. On remand, the district court should reexamine whether DeSantis would have suspended Warren based solely on the unprotected activities that motivated the suspension: Warren’s performance, his Low-Level Offense Policy, and his Bike Policy.

VACATED and REMANDED.

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