Warren Initial Appellate Brief March 2023

USCA11 Case: 23-10459 Document: 39 Date Filed: 03/13/2023 Page: 1 of 66
23-10459
IN THE
United States Court of Appeals

FOR THE ELEVENTH CIRCUIT
d ANDREW H. WARREN ,
—v.—
Plaintiff-Appellant,
RON DE SANTIS , individually and

in his Official Capacity as Governor of the State of Florida,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
PLAINTIFF-APPELLANT’S OPENING BRIEF
DAVID A. O’NEIL DAVID B. SINGER

DEBEVOISE & PLIMPTON LLP MATTHEW T. NEWTON
801 Pennsylvania Avenue, N.W., OLDER LUNDY KOCH & MARTINO
Suite 500 1000 West Cass Street
Washington, DC 20004 Tampa, Florida 33606
(202) 383-8000
(813) 254-8998
daoneil@debevoise.com
dsinger@olderlundylaw.com
ALEXANDRA P. SWAIN mnewton@olderlundylaw.com
DEBEVOISE & PLIMPTON, LLP
650 California Street JEAN-JACQUES CABOU
San Francisco, California 94108 ALEXIS E. DANNEMAN
(415) 738-5700 PERKINS COIE LLP
apswain@debevoise.com 2901 North Central Avenue, Suite 2000
ANAGHA SUNDARARAJAN Phoenix, Arizona 85012
SAMANTHA B. SINGH (602) 351-8000
MARISA L. PAGÁN-FIGUEROA jcabou@perkinscoie.com
JANE TIEN adanneman@perkinscoie.com
DEBEVOISE & PLIMPTON, LLP
66 Hudson Boulevard
New York, New York 10001
(212) 909-6000
asundararajan@debevoise.com
sbsingh@debevoise.com
mlpaganfigueroa@debeovise.com
jtien@debevoise.com
Attorneys for Plaintiff-Appellant
USCA11 Case: 23-10459 No. 23-10459
Document: 39 Date Filed: 03/13/2023 Page: 2 of 66
Andrew Warren v. Ron DeSantis
STATEMENT OF INTERESTED PARTIES
Plaintiff-Appellant certifies that the following is a complete list of interested
persons as required by Federal Rule of Appellate Procedure 26.1 and Eleventh
Circuit Rule 26.1:
1. Aaron, Jeffrey M., Attorney for Defendant-Appellee
2. Cabou, Jean-Jacques, Attorney for Plaintiff-Appellant
3. Casselman, Margo R., Attorney for Plaintiff-Appellant
4. Christmas, Natalie, Attorney for Defendant-Appellee
5. Costello, David M., Attorney for Defendant-Appellee
6. Danneman, Alexis, Attorney for Plaintiff-Appellant
7. Debevoise & Plimpton, LLP, Attorneys for Plaintiff-Appellant
8. DeSantis, Ron, Defendant-Appellee
9. DeSousa, Jeffrey P., Attorney for Defendant-Appellee
10. Florida Office of the Attorney General, Attorneys for Defendant-
Appellee
11. Gray Robinson, P.A., Attorneys for Defendant-Appellee
12. Grouev, Zachary, Attorney for Defendant-Appellee
13. Hinkle, Robert L., District Court Judge
14. Levesque, George T., Attorney for Defendant-Appellee
15. Lopez, Susan, Interested Party
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USCA11 Case: 23-10459 No. 23-10459
16. Moody, Ashley, Attorney for Defendant-Appellee
17. Newton, Matthew T., Attorney for Plaintiff-Appellant
18. Older, Lundy, Koch & Martino, Attorneys for Plaintiff-Appellant
19. O’Neil, David A., Attorney for Plaintiff-Appellant
20. Pagan-Figueroa, Marisa L., Attorney for Plaintiff-Appellant
21. Percival, James H., Attorney for Defendant-Appellee
22. Perkins Coie LLP, Attorneys for Plaintiff-Appellant
23. Schenck, Robert S., Attorney for Defendant-Appellee
24. Singer, David B., Attorney for Plaintiff-Appellant
25. Singh, Samantha B., Attorney for Plaintiff-Appellant
26. Sundararajan, Anagha, Attorney for Plaintiff-Appellant
27. Swain, Alexandra P., Attorney for Plaintiff-Appellant
28. Tien, Jane, Attorney for Plaintiff-Appellant
29. Warren, Andrew, Plaintiff-Appellant
30. Whitaker, Henry C., Attorney for Defendant-Appellee
No publicly traded company or corporation has an interest in the outcome of
this case or appeal.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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USCA11 Case: 23-10459 No. 23-10459
Dated: March 13, 2023

DEBEVOISE & PLIMPTON LLP
/s/ David A. O’Neil
David A. O’Neil
801 Pennsylvania Ave. NW, Suite 500
Washington, D.C. 20004
(202) 383-8000
Counsel for Plaintiff-Appellant

Andrew Warren
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STATEMENT REGARDING ORAL ARGUMENT
This Court expedited consideration of this case and scheduled oral argument
for May 2, 2023. Plaintiff-Appellant Andrew Warren respectfully submits that oral
argument is appropriate in light of the significant implications of the case and the
ongoing public interest in the resolution of the issues it presents. Mr. Warren
believes that oral argument will assist the Court in fully evaluating the claims
before it and effectively resolving the appeal.
i
TABLE OF CONTENTS
STATEMENT OF INTERESTED PARTIES....................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT...........................................................i
JURISDICTIONAL STATEMENT ..................................................................................... viii
ISSUES PRESENTED.................................................................................................................. 1
PRELIMINARY STATEMENT ............................................................................................... 3
STATEMENT OF THE CASE .................................................................................................. 6
I. Factual Background .............................................................................................. 6
A. Mr. Warren Advocated for Criminal Justice Reform as a

Candidate and an Elected Official.................................................................... 6
B. As a Prosecutor, Mr. Warren Implemented Policies Requiring

Individualized Discretion in Every Case ....................................................... 8
C. Governor DeSantis Instructed His Staff to Find Prosecutors

Who Advocated “Woke” Viewpoints .......................................................... 10
D. The Governor’s Office Targeted Mr. Warren for Suspension

Because of His Speech and Associations.................................................... 12
E. The Governor Announced the Suspension by Focusing on Mr.

Warren’s Speech and Associations ............................................................... 16
F. The Governor Has Continued to Justify the Suspension on the

Basis of Mr. Warren’s Speech and Associations ..................................... 19
II. Procedural History.............................................................................................. 20
A. Pretrial Proceedings ........................................................................................... 21
B. The Trial ................................................................................................................ 23
C. The District Court’s Decision ......................................................................... 24
ii
III. Standard of Review ............................................................................................ 27
SUMMARY OF THE ARGUMENT.................................................................................... 27
ARGUMENT ................................................................................................................................ 30
I. The District Court Erred In Holding that the Eleventh

Amendment Barred It from Ordering Reinstatement ............................. 31
II. The District Court Misapplied the Legal Framework for

Adjudicating First Amendment Retaliation Claims ................................ 33
A. Mr. Warren Proved his First Amendment Retaliation Case ................. 34
B. The Governor Was Required Affirmatively To Plead a

Legitimate, Non-Discriminatory Reason for the Suspension and
Then to Prove That Reason ............................................................................. 35
C. Governor DeSantis Failed to Prove the Motivation He Pled ............... 37
D. The Governor Specifically Disavowed the Motivation the

District Court Adopted...................................................................................... 40
E. The Motivation the Court Attributed to the Governor was

Unlawful for Other Reasons............................................................................ 42
F. The Motivation the Court Attributed to the Governor Itself

Violates the First Amendment ........................................................................ 44
CONCLUSION ............................................................................................................................ 52
CERTIFICATE OF SERVICE................................................................................................ 54
iii
TABLE OF AUTHORITIES
Cases
Acevedo-Diaz v. Aponte, 1 F.3d 62 (1st Cir. 1993) ................................................ 35
Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993) .................................................... 45
Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) ............................................... 34
Bond v. Floyd, 385 U.S. 116 (1966) ........................................................................ 34
Branti v. Finkel, 445 U.S. 507 (1980) ..................................................................... 45
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ................................................. 38
Circle Schs. v. Pappert, 381 F.3d 172 (3d Cir. 2004) ............................................ 51
Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) ................................................. 27
Crutcher v. MultiPlan, Inc., 22 F.4th 756 (8th Cir. 2022)....................................... 39
Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) ............................. 7
Edelman v. Jordan, 415 U.S. 651 (1974) ............................................................... 31
Elrod v. Burns, 427 U.S. 347 (1976) ....................................................................... 45
Ex Parte Young, 209 U.S. 123 (1908) .............................................................. 31, 32
Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909 (6th Cir. 1991) ................ 46
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)............................................ 42
Gomez v. Bird Auto., LLC, 411 F. Supp. 3d 1332 (S.D. Fla. 2019) ................. 36, 38
Greenlaw v. United States, 554 U.S. 237 (2008).................................................... 39
Harrell v. University of Montevallo, 673 F. Supp. 430 (N.D. Ala.

1987), aff’d, 861 F.2d 725 (11th Cir. 1988) ...................................................... 36
Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991)..................................................... 27
Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253 (2022) ............................34, 35
iv
Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) ........................................ 31, 32
Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276 (11th
Cir. 2005) ........................................................................................................... 42
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
384 (1993) .......................................................................................................... 51
McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994) ................................................ 36
McCarthy v. Hawkins, 381 F.3d 407 (5th Cir. 2004) .............................................. 31
Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992)............................. 51
Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314

(S.D. Fla. 2005)................................................................................................... 38
* Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977) .......................................................................................................... passim
Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020) ................................. 6, 51
Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69 (1st Cir. 2000) ................... 36
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ......................... 31
Pickering v. Bd. of Educ., 391 U.S. 563 (1968)....................................................... 21
Republican Party of Minn. v. White, 536 U.S. 765 (2002) ...................................... 35
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)................ 47
Rutan v. Republican Party, 497 U.S. 62 (1990) ...................................................... 45
* Stanley v. City of Dalton, Ga., 219 F.3d 1280 (11th Cir. 2000) .......................passim
Thomas v. Sec’y, Fla. Dep’t of Corr., 644 F. App’x 887 (11th Cir.
2016) ................................................................................................................... 11
Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635
(2002) ................................................................................................................. 32
Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247 (2011) ......................... 32
West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ........................ 51
v
Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1308 (11th Cir.

2017) ................................................................................................................... 49
Williams v. City of River Rouge, 909 F.2d 151 (6th Cir. 1990) ............................. 46
Wisconsin Dept. of Corr. v. Schacht, 524 U.S. 381 (1998) .................................... 33
Wood v. Georgia, 370 U.S. 375 (1962) ................................................................... 34
Statutes
42 U.S.C. § 1983 ...................................................................................................... 21
Fla. Const. art. IV, § 7(a) ......................................................................................... 36
U.S. Const. amend. I .........................................................................................passim
U.S. Const. amend. XI ......................................................................................passim
Other Sources
Charlie Kirk, Live Now: Unite and Win Rally in PHX AZ -powered by
Turning Point ACTION, YouTube (Aug. 14, 2022),
https://www.youtube.com/watch?v=-b1W-C9PIVw&t=4578s ...................19, 47
DeSantis Says He Won’t Reinstate Suspended Hillsborough

Prosecutor Andrew Warren, WUSF Public Media (Jan. 26, 2023,
6:55 AM), https://wusfnews.wusf.usf.edu/politics-issues/2023-01-
26/desantis-says-he-wont-reinstate-suspended-hillsborough-
prosecutor-andrew-warren .................................................................................. 42
WPTV News – PL Palm Beaches and Treasure Coast, Florida Gov.

Ron DeSantis Speaks in Hialeah, YouTube (Aug. 23, 2022).
https://www.youtube.com/watch?v=Fn0Uo5MWW5Q ..................................... 19
Jenavieve Hatch, Florida Gov. Ron DeSantis Bring the War on ‘Woke
Mind Virus’ Ideology to California, Sacramento Bee (Mar. 6,
2023), https://www.sacbee.com/news/politics-government/capitol-
alert/article272774740.html ................................................................................ 19
Ron DeSantis, The Courage to Be Free: Florida’s Blueprint for

America’s Revival (2023) ............................................................................passim
vi
Alexandra Berzon and Ken Bensinger, Inside Ron DeSantis’s

Politicized Removal of an Elected Prosecutor, N.Y. Times (Mar.
11, 2023),
https://www.nytimes.com/2023/03/11/us/politics/desantis-andrew-
warren-liberal-prosecutor.html ........................................................................... 19
Maggie Haberman, DeSantis Hits the Trail. Just Don’t Call it a

Campaign., N.Y. Times (Feb. 28, 2023),
https://www.nytimes.com/2023/02/28/us/politics/desantis-primary-
states.html ........................................................................................................... 20
vii
JURISDICTIONAL STATEMENT
The District Court has jurisdiction of the case below pursuant to 28 U.S.C. §
1331, which gives federal district courts original jurisdiction over all civil actions
“arising under the Constitution, laws, or treaties of the United States.” This appeal
was taken from a final judgment in the case below, entered on January 20, 2023,
R.A. Vol. VII at 1221, and was filed on February 14, 2023. Dkt. No. 1. This
Court therefore has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
viii
Plaintiff-Appellant Andrew H. Warren appeals from the Order on the Merits
and Judgment of the U.S. District Court for the Northern District of Florida
(Hinkle, J.) (Appendix (“R.A.”) Vol. VII at 1221), granting judgment in favor of
Florida Governor Ron DeSantis, Defendant-Appellee, on January 20, 2023.
Because the District Court misapplied governing law, Mr. Warren respectfully
requests that this Court reverse the judgment below and remand with instructions
to enter a permanent injunction reinstating him to his constitutional office.
ISSUES PRESENTED
1. Whether the District Court erred in holding that the Eleventh
Amendment bars injunctive relief to remedy an identified federal constitutional
violation because the same conduct also violates state law.
2. In the alternative, whether the District Court misapplied Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), by excusing
the defendant from liability on the ground that he would have made the same
decision regardless of the plaintiff’s protected activity when:
a. The court specifically rejected the proffered facts and motivation the
defendant pleaded as a basis for the affirmative “same-decision”
defense, and the defendant specifically disavowed the facts and
motivation the court attributed to him;
1
b. The reason that the court concluded that the defendant would have
made the same decision was illegal for other reasons; and
c. The motivation the court attributed to the defendant itself constituted
politically motivated viewpoint discrimination in violation of the First
Amendment.
2
PRELIMINARY STATEMENT
This case concerns the illegal attempt by Governor DeSantis to nullify the
results of two elections and retaliate for core political speech in violation of the
First Amendment. On August 4, 2022, the Governor announced that he was
suspending Appellant, Andrew Warren, from his constitutional office as the twice-
elected State Attorney for Hillsborough County, Florida, because Mr. Warren had
expressed viewpoints that, according to Governor DeSantis, displayed “neglect of
duty” and “incompetence.” Following a bench trial, the District Court rejected that
conclusion, ruling that Governor DeSantis’ action violated both Florida law and
the First Amendment. The District Court declined, however, to reinstate Mr.
Warren to his post on the ground that it could not legally do so.
The District Court correctly identified the violation of Mr. Warren’s federal
constitutional rights, but it erred in holding that it lacked power to provide a
remedy. The court appeared to reason that the Eleventh Amendment barred
federal-court relief because the Governor’s conduct also violated state law. The
District Court cited no support for that proposition, which fundamentally
misapprehends the function of the Eleventh Amendment. Once the District Court
correctly concluded that the “Governor violated the First Amendment,” it had the
authority to issue prospective relief by ordering Mr. Warren reinstated.
3
The District Court’s decision is equally erroneous if it is interpreted as an
effort to apply the framework of Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977), which governs First Amendment retaliation claims.
Under that framework, the Governor was required to plead, and then bore the
burden to prove, that he would have made the same decision for reasons that were
legitimate and unrelated to Mr. Warren’s protected activity. The Governor failed
to carry that burden for three separate reasons.
First, the Governor failed to prove the facts he pleaded. He asserted in his
answer and argued at trial that he suspended Mr. Warren solely for his purported
“expressed blanket refusal” to prosecute certain cases. The District Court squarely
rejected every aspect of that rationale: It found that Mr. Warren had no such
blanket policies and that, in any event, the Governor was not motivated by a
genuine belief to the contrary. Having rejected the facts on which the Governor
staked his affirmative defense, the District Court should have entered judgment for
Mr. Warren. Instead, the court cast about for possible alternative motivations and
adopted one that the Governor not only never advanced but affirmatively
disavowed. The District Court erred in effectively holding that the Governor
“proved” his affirmative defense on the basis of facts he did not plead and a
rationale he sought to refute.
4
Second, the motivation the District Court attributed to the Governor was
independently unlawful. Mount Healthy requires the defendant to prove that he
would have taken the same action for a “legitimate reason.” Stanley v. City of
Dalton, Ga., 219 F.3d 1280, 1293 (11th Cir. 2000) (emphasis added) (citation
omitted). But as the District Court correctly concluded, the Governor’s motivation
was not legitimate; it was illegal because it “violated the Florida Constitution.”
Counsel is unaware of any previous reported case in which a court excused a First
Amendment violation when the defendant’s purported reasons for acting were
illegal on other grounds. By permitting the Governor to prevail on such a rationale,
and to do so without notice to Mr. Warren, the District Court fundamentally
misapplied Mount Healthy.
These errors alone would warrant reversal. But there is a third, even more
fundamental reason that the District Court’s Mount Healthy analysis fails. The
motivation the District Court attributed to the Governor itself clearly violates the
First Amendment. As the District Court’s findings correctly reflect, the Governor
suspended Mr. Warren in order to amplify his trademark “anti-woke” political
platform. The District Court found that the Governor suspended Mr. Warren
because of “the anticipated political benefits” he would reap if he “took down” a
“woke” prosecutor. In the District Court’s view, “the First Amendment does not
speak to” such a political motivation. That conclusion is incorrect. The reason the
5
Governor saw political advantage in suspending Mr. Warren is that doing so
allowed him to promote “anti-woke” ideas over the “progressive,” “Soros-backed”
“world view” that he sought to eradicate and that, he is fond of telling voters, “goes
to Florida to die.” That political motivation is not the kind of non-discriminatory
reason that Mount Healthy requires. It is instead a textbook example of viewpoint
discrimination—the promotion of preferred ideas and the punishment of disfavored
ones—that this Court has described as an “egregious” form of censorship. Otto v.
City of Boca Raton, 981 F.3d 854, 864 (11th Cir. 2020).
This Court should reverse the decision below and remand with instructions
to enter a permanent injunction reinstating Mr. Warren to the elected office from
which the Governor unconstitutionally removed him.
STATEMENT OF THE CASE1
I. Factual Background
A. Mr. Warren Advocated for Criminal Justice Reform as a

Candidate and an Elected Official
Andrew Warren is an experienced prosecutor who has dedicated his
professional life to protecting public safety. R.A. Vol. I at 38 ¶¶ 22-23. At the end
of a decorated career with the Department of Justice, Mr. Warren returned to his
home state of Florida and ran for State Attorney for the 13th Judicial Circuit
(“SAO13”) in Hillsborough County. Id. He campaigned on a platform of
1
Citations to “R.A. at __” refer to the Record Appendix.
6
criminal justice reform, urging voters to choose him because of his views on how
prosecutors can further the fair and efficient use of law enforcement resources. See
R.A. Vol. IV at 631:7-20, 648:8-650:13, 725:23-726:9. Voters narrowly elected
Mr. Warren over the longtime incumbent in 2016 and, after a successful first term,
reelected him by a much wider margin in 2020. See R.A. Vol. I at 38 ¶¶ 22-23;
R.A. Vol. IV at 607:17-608:7; R.A. Vol. VII at 1228-89. Between the two
elections, Mr. Warren received nearly 700,000 votes. R.A. Vol. 1 at 38 ¶ 23; R.A.
Vol. IV at 607:18.
Mr. Warren has remained a vocal advocate for criminal justice during his
time in office, sharing his viewpoints with constituents and speaking out on
subjects of public concern. R.A. Vol. IV at 607:6-14, 612:19-24, 622:6-9. As part
of that advocacy, Mr. Warren agreed to join opinion letters written and published
by an organization called Fair and Just Prosecution (“FJP”) on a wide range of
topics, including the death penalty, election security, and reproductive rights. See
R.A. Vol. IV at 653:8-14, R.A. Vol. V 749:7-8, R.A. Vol. II at 390-98.
In June 2021, Mr. Warren joined over 70 prosecutors across the country in
signing a letter authored and published by FJP expressing concern over the
restrictions in various states on gender-affirming care for transgender individuals
(the “Transgender Statement”). R.A. Vol. II at 381-88. Similarly, in June 2022, in
the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health
7
Org., 142 S. Ct. 2228 (2022), Mr. Warren joined a letter signed by more than 90
prosecutors expressing disagreement with efforts across the country to criminalize
abortion care (the “Abortion Statement”). R.A. Vol. II at 390-398. The signatories
voiced their opinion that efforts to punish abortion were misguided,
counterproductive, and unjust. Id. They also stated their view that law
enforcement resources are better directed towards “protect[ing] the well-being and
safety of all members of [their] community,” and therefore that “[they] commit to
exercise [their] well-settled discretion and refrain from prosecuting those who seek,
provide, or support abortions.” Id. at 390.
Neither of these FJP Statements referenced any Florida statute. R.A. Vol.
VII at 1259. Indeed, Florida has never had any law criminalizing gender-affirming
care, and the Abortion Statement refers to measures that do not exist in Florida.
The Statements also were not official policies of SAO13. Id. at 1259-1260.
Instead, they were political speech by elected officials on important matters of
public concern. See id. at 1260.
B. As a Prosecutor, Mr. Warren Implemented Policies Requiring

Individualized Discretion in Every Case
While Mr. Warren’s public advocacy reflected his political opinions and
viewpoints as an elected official, his formal policies for SAO13 constituted his
instructions to the prosecutors whom he supervised. The formulation of such
policies followed a rigorous and established process involving research, drafting,
8
vetting, discussion with law enforcement partners, and formalized training. R.A.
Vol. IV at 613:19-615:5.
Mr. Warren’s central and overriding direction to his office was set forth in a
memo entitled “Prosecutorial Discretion and the Mission of Criminal Justice,”
which he personally authored and provided to every prosecutor in the office. Id. at
622:18; R.A. Vol. II at 447. That memo instructed that because “[c]ase-specific
review is a hallmark of our criminal justice system,” “[i]n every case, [prosecutors]
must exercise discretion based on the facts of that case.” Id. at 448. Mr. Warren
emphasized to his office that the need to exercise individualized discretion—an
instruction his memo repeats eleven times—was his North Star, applicable to every
case, every offense, and every stage of the criminal process. See generally id.; see
also R.A. Vol. IV at 620:25-621:4.
Other policies reinforced Mr. Warren’s emphasis on case-specific discretion.
For example, based on research about the disproportionate racial impact of bicycle
stops, Mr. Warren issued a policy that provided guidance on when such stops
should give rise to charges (“Bike Stop Policy”). See R.A. Vol. IV at 634:13-
635:20; R.A. Vol. III at 511-512. That policy set forth certain presumptions but
explained that they could be overcome “[i]f, based on the facts and circumstances
of the case, the public safety needs of the community outweigh[ed]” the general
guidance. R.A. Vol. III at 512. Similarly, in response to the backlog of cases that
9
piled up during the Covid-19 pandemic, Mr. Warren (like many other prosecutors
confronting the same challenge) implemented a policy instructing prosecutors how
to approach decisions about whether to charge certain low-level offenses
(“LLOP”). R.A., Vol. III at 514; R.A. Vol. IV at 627:18-629:6. As with the Bike
Stop Policy, the Low-Level Offense Policy made clear that any presumption could
be “overcome by significant public safety concerns” in the individual case. R.A.
Vol. III at 514. And in July 2022, just weeks before his suspension, Mr. Warren
issued a policy on firearms offenses instructing that charging decisions should be
guided by certain presumptions but that, as always, such decisions ultimately
“depend[] on the particular facts of the case.” R.A. Vol. II at 324.
C. Governor DeSantis Instructed His Staff to Find Prosecutors

Who Advocated “Woke” Viewpoints
In December 2021, amid intense national debate about social and criminal
justice viewpoints, the Governor instructed his “Public Safety Czar,” Larry Keefe,
to identify any prosecutors in Florida who “had Soros support” for their campaigns
and espoused “so-called progressive” ideas. See Ron DeSantis, The Courage to Be
Free: Florida’s Blueprint for America’s Revival 238 (2023) (hereinafter “DeSantis
Memoir”); 2 see also R.A. Vol. V at 737:18-738:4. While the Governor has
2
This Court may take judicial notice of facts that are not in “reasonable dispute”
because they “can be accurately and readily determined from sources whose
accuracy cannot be reasonably questioned,” including the few news articles
and the Governor’s statements that Plaintiff-Appellant cites throughout.
10
repeatedly asserted that he commissioned a “thorough review” of “the performance”
of Florida’s State Attorneys,3 Mr. Keefe conducted no such “performance” review,
much less a “thorough” one. R.A. Vol. V at 741:6-743:8. Instead, he called his
like-minded friends in law enforcement and asked for their “impressions” about
whether anyone had a “reputation” for advocating the kind of “views,” “approach,”
“mindset,” or “world view” that Mr. Keefe associated with the progressive
movement. Id. at 755:7, 744:1, 753:11-21, 826:18-19. By his own admission, Mr.
Keefe “did not conduct an investigation.” Id. at 739:15. He “paid no attention to
the details and took not a single note,” spoke to no one he did not already know,
and recalled no specifics of what he was told in the phone calls during his “look
around.” See R.A. Vol. VII at 1235-37; R.A. Vol. V at 753:7-10, 738:10-19.
Mr. Keefe concluded from these phone calls with his friends that Mr.
Warren had “taken [up] th[e] mantle” of progressive ideas in Florida. R.A. Vol.
VII at 1236; R.A. Vol. V at 744:15. In Mr. Keefe’s view, Mr. Warren was “an
expresser or a conduit for Mr. Soros’s world views on criminal prosecution.” R.A.
Vol. V at 826:18-19.
Thomas v. Sec’y, Fla. Dep’t of Corr., 644 F. App’x 887, 888 (11th Cir. 2016).
The Court has the broad power to do so at any stage in the proceedings. Id.
3
See, e.g., DeSantis Memoir at 238; see also R.A. Vol. I at 459 1:27-1:30.
11
On that basis, Mr. Keefe took two additional steps. First, he obtained from
Hillsborough County Sheriff Chad Chronister a self-selected and incomplete set of
SAO policies as well as some news articles concerning SAO13. R.A. Vol. VI at
1064:2-22; R.A. Vol. V at 759:16-22; R.A. Vol. VII at 1237. Second, Mr. Keefe
browsed the internet for information about Mr. Warren and found FJP letters he
had joined about the death penalty, election security, and gender-affirming care.
R.A. Vol. V at 750:17-20, 765:16-22, 766:1-5, 767:7-12.
D. The Governor’s Office Targeted Mr. Warren for Suspension

Because of His Speech and Associations
Mr. Keefe’s “look around” lay dormant until June 2022, when he learned
that Mr. Warren had signed the Abortion Statement. Id. at 766:13-22. At that
point, Keefe took his impressions from friends, the Chronister materials, his
internet search results, and the FJP letters and began “beating down [the] door” of
the General Counsel’s Office insisting that the Governor’s lawyers move to
suspend Mr. Warren. R.A. Vol. VII at 1242; R.A. Vol. V at 769:11-16; R.A. Vol.
VII at 1087:9-10.
After meeting with the Governor to confirm he wished to proceed, the
lawyers asked Mr. Keefe to draft an executive order explaining the motivation for
the suspension. R.A. Vol. VII at 1240-42; see generally R.A. Vol. III at 464-75;
R.A., Vol. III at 477-87; R.A. Vol. III at 527-59. The drafts Mr. Keefe prepared
did not cite a single SAO13 policy, charging decision, or any other information
12
concerning Mr. Warren’s actual performance as State Attorney. Instead, they
relied only on Mr. Warren’s speech, his political associations, and the speech of
those associates. See id. In particular, the draft cited as grounds for suspension
four FJP advocacy letters concerning the death penalty, election security, abortion
rights, and transgender care. R.A. Vol. III at 464-75. It then recited that:
 FJP “is affiliated with entities associated with activist George Soros”;
 “Warren has publicly acknowledged that activist George Soros
affiliated entities have funded Warren’s political activities”;
 “Soros has supported Warren and other ‘progressive prosecutors’
through a series of shell organizations, affiliates and pass-through
entities, including the Democratic Party”;
 “FJP is affiliated with Soros through an organization named ‘The
Tides Center,’ which represents itself publicly as an ‘incubator’ that
helps stand up progressive groups”; and
 “The Tides Center receives funding from Soros’ ‘Open Society’
network of entities.”
R.A. Vol. III at 472-73.
The draft of the Executive Order then went to the Governor’s lawyers, who
viewed their role not as deciding whether or why to suspend Mr. Warren—that
decision had been made by Mr. Keefe and the Governor—but instead as sanitizing
13
the document so that it could survive a proceeding in the Florida Senate and would
not create legal liability. See R.A. Vol. VI at 948:12-949:12. They therefore
removed Mr. Keefe’s references to two of the FJP letters and excised his language
about Mr. Warren’s political associations and campaign support. R.A. Vol. II at
342-51; R.A. Vol. III at 523. They added references to the Bike Stop and Low-
Level Offense policies and highlighted one excerpt from the FJP Abortion
Statement. R.A. Vol. VI at 1012:21-1013:10; R.A. Vol. II at 342-51. But the
lawyers ignored facts or mischaracterized documents when necessary to advance
their narrative. They falsely described the SAO13 policies as “categorical” or
“blanket” non-enforcement directives even though both policies on their face
permitted individualized discretion based on public safety concerns and even
though the lawyers knew that Mr. Warren had since continued to bring cases
covered by those policies. See R.A. Vol. II at 319-20, Warren Letter to Sheriff
Chronister Obtained by the General Counsel’s Office; see also R.A. Vol. VI at
973:20-974:19. Similarly, the lawyers falsely characterized the Abortion
Statement as reflecting Mr. Warren’s “ignorance” of the need to exercise “case-by-
case, fact-specific” discretion, when in fact they knew about (and abandoned an
attempt to discredit) Mr. Warren’s subsequent public statement that he would
“consider the facts and circumstances of every case before making a decision”
about any abortion prosecution. R.A. Vol. IV at 664:13-15.
14
The Governor’s lawyers made no effort to determine what Mr. Warren’s
actual policies or practices were. R.A. Vol. VII at 1238; R.A. Vol. V at 751:8-10.
They did not contact Mr. Warren or anyone else in SAO13 to ask for fear that
doing so would “tip him off” and diminish the political impact of the suspension
announcement. R.A. Vol. VII at 1276; R.A. Vol. V at 748:9-11, 751:6-10, 751:16-
21, 752:14-22; R.A. Vol. VII at. 1138:25-1139:3, 1143:18-24, 1176:22-1177:6.
The Governor’s office “made no effort” to determine Mr. Warren’s actual
performance as a prosecutor because they “did not wish to know.” R.A. Vol. VII
at 1275. Indeed, the lawyers initially added information about the crime statistics
under Mr. Warren but removed them because the numbers did not support
suspension. R.A. Vol. III at 507; R.A. Vol. VI at 1022:7-25. The first time the
lawyers requested any information from SAO13 about Mr. Warren’s performance
as State Attorney was after the suspension. R.A. Vol. VI at 944:12-23.
While the lawyers recognized that it was legally unwise to include Mr.
Keefe’s explicit references to Mr. Warren’s speech and associations in the
Executive Order itself, they also understood that Mr. Keefe’s motivations for
suspension were “valuable for the larger political narrative.” R.A. Vol. III at 523;
R.A. Vol. VI at 1016:2-7. They therefore saved the language Mr. Keefe had
drafted and included it in talking points they prepared for the Governor when he
made the announcement. R.A. Vol. III at 583-86. Before the order was finalized,
15
the Governor himself edited the document to describe in graphic terms how partial-
birth abortions were performed. R.A. Vol. III at 503; R.A. Vol. VII at 1110:25-
1111:10.
E. The Governor Announced the Suspension by Focusing on Mr.

Warren’s Speech and Associations
Once the lawyers made Mr. Keefe’s draft of the Executive Order
presentable, the Governor’s team prepared to announce the suspension. They
circulated talking points among senior officials, including the Governor, that
described Mr. Warren as “a woke ideologue masquerading as a prosecutor” in
bolded text and declaring that Mr. Warren had engaged in “woke activism.” R.A.
Vol. III at 584. The talking points included, nearly verbatim, the reasons Mr.
Keefe had included in his original draft. R.A. Vol. III at 583-86; R.A. Vol. III at
484-85. The front pocket of the briefing binder for the announcement included a
single document: A six-page memo entitled “The Soros Plan,” which described
how Soros delivers “radical change through his web of advocates,” characterized
FJP as “an advocacy arm of the progressive prosecution movement,” and tied Mr.
Warren to Soros campaign contributions. R.A. Vol. II at 298-99; R.A. Vol. V at
887:11-13.
Armed with that messaging, the Governor announced the suspension on
August 4, 2022, at a campaign- style event with an audience of cheering supporters
and a backdrop of uniformed law enforcement officials who praised him as “the
16
greatest Governor in America.” R.A. Vol. II at 457 17:10-17:20. Just before the
announcement, Mr. Keefe led a contingent of armed officers to SAO13 and
abruptly escorted Mr. Warren from his office without giving him an opportunity
even to read the Executive Order. R.A. at 138, Vol. IV at 669:25-670:24. That
encounter was the first time that anyone from the Governor’s Office had contacted
anyone in SAO13 about the suspension. Id. at 671:6-9; R.A. Vol. V at 751:12.
Meanwhile, the Governor’s communications team hammered the “political
narrative” that the suspension was intended to achieve. On the eve of the
suspension, Christina Pushaw announced that there would be a “MAJOR
announcement,” stating that “[e]veryone [should] get some rest tonight” and
“[p]repare for the liberal media meltdown of the year.” R.A. Vol. III at 588. The
next day, Pushaw tweeted an “equally partisan, unprofessional message”
celebrating an article that recounted Mr. Warren’s removal from his office by
armed officers. R.A. Vol. III at 564; R.A. Vol. VII at 1244-45. Behind the scenes,
the Governor’s staff was working to “let the press sensationalize” the
announcement, generate “buzz,” “up the engagement” on social media, feed
information to “[f]riendly[]” outlets, and “amplify” the political impact. R.A. Vol.
II at 410-11, 418, 422-23. In the words of the Governor and his staff, he “pulled
the trigger” on Mr. Warren, and his communications aides “put the nail in the
coffin.” Id. at 421; DeSantis Memoir, supra, at 238.
17
The night of the suspension, the Governor appeared on Tucker Carlson’s
show to promote the suspension. When Carlson asked him, “why did you do it,”
the Governor immediately referred to “Soros prosecutors around the country” who,
he argued, do not have a proper view of the prosecutorial function. R.A. Vol. II at
459 0:10-0:36. The Governor highlighted Warren’s decision to join the FJP
Statements about “laws against transgender surgeries . . . laws protecting the right
to life.” He then continued:
Here is what Soros is doing, it’s actually smart on his

part. They can’t get these things enacted in the
legislature . . . [s]o what they do, he will get involved in
these Democrat primaries in a Democrat area, he’ll flush
a million dollars to get some radical to win the
primary . . . .
Id. at 1:46-2:06. The Governor’s justification for suspending Mr. Warren—one
battle in the political war against “Soros” beliefs—closely tracked Mr. Keefe’s
original draft of the order. See e.g., R.A. Vol. III at 495. All told, the Governor’s
office calculated that the suspension had secured $2.4 million worth of free media
coverage promoting that narrative. R.A. Vol. II at 307-08.
When he suspended Mr. Warren, the Governor appointed as interim State
Attorney one of his staunch political supporters, who immediately began
rescinding Mr. Warren’s policies and repudiating his viewpoints. R.A. Vol. I at
48-49 ¶¶ 70, 72, 74, 75. Thus, because of the Governor’s action, an individual for
18
whom no one has ever voted currently occupies the constitutional office for which
hundreds of thousands of Floridians chose Mr. Warren in two separate elections.
F. The Governor Has Continued to Justify the Suspension on the

Basis of Mr. Warren’s Speech and Associations
Governor DeSantis used Mr. Warren’s suspension as the springboard for a
speaking tour in which he features the action as a key example of his fight against
“the woke mind virus.”4 Ten days after the announcement, he told a crowd in
Phoenix that Mr. Warren was a “leftist politician” and “Soros-backed
prosecutor[].”5 The following week, he again described Mr. Warren as a “leftist
politician[]” and bragged that “I removed him from office.”6
More recently, the suspension has become part of the “anti-woke” platform
in the Governor’s presumed Presidential campaign. 7 Raising money in Staten
4
See, e.g., Jenavieve Hatch, Florida Gov. Ron DeSantis Bring the War on ‘Woke
Mind Virus’ Ideology to California, Sacramento Bee (Mar. 6, 2023),
https://www.sacbee.com/news/politics-government/capitol-
alert/article272774740.html.
5
Charlie Kirk, Live Now: Unite and Win Rally in PHX AZ -powered By Turning
Point ACTION, YouTube (Aug. 14, 2022),
https://www.youtube.com/watch?v=-b1W-C9PIVw&t=4578s at 2:12:44-
2:13:13, 2:23:00-2:23:36.
6
WPTV News – PL Palm Beaches and Treasure Coast, Florida Gov. Ron DeSantis
Speaks in Hialeah, YouTube (Aug. 23, 2022).
https://www.youtube.com/watch?v=Fn0Uo5MWW5Q at 5:13-5:47.
7
See, e.g., Alexandra Berzon and Ken Bensinger, Inside Ron DeSantis’s
Politicized Removal of an Elected Prosecutor, N.Y. Times (Mar. 11, 2023),
19
Island in February 2023, the Governor stated that he suspended Mr. Warren
because he is a “woke prosecutor who happen[ed] to get elected with George Soros’
campaign contributions[.]” 8 The Governor even devoted three pages to the
suspension in his memoir, which has served as the soft launch for his 2024
Presidential campaign.9 The book acknowledges that the suspension was intended
to punish and to suppress an ideology the Governor dislikes. According to the
Governor, Mr. Warren’s suspension “sent a clear signal to other prosecutors
around Florida that the Soros model . . . was not going to fly in the Sunshine State.”
DeSantis Memoir, supra, at 239.
II. Procedural History
Mr. Warren sued the Governor in the Northern District of Florida on August
17, 2022, alleging that his suspension violated the First Amendment and the
Florida Constitution. R.A. Vol. I at 34-109. He sought injunctive and declaratory
relief on his federal claim pursuant to 42 U.S.C. § 1983. Id.
https://www.nytimes.com/2023/03/11/us/politics/desantis-andrew-warren-
liberal-prosecutor.html.
8
See Declaration of David O’Neil in Support of Plaintiff-Appellant’s Reply to
Motion to Expedite Appeal Exhibit 2, Amber Jo Cooper, Desantis to Meet with
Law Enforcement Officers in New York City, Philadelphia, Chicago, Florida’s
Voice (Feb. 20, 2023), https://flvoicenews.com/desantis-staten-island/.
9
See Maggie Haberman, DeSantis Hits the Trail. Just Don’t Call it a Campaign.,
N.Y. Times (Feb. 28, 2023),
https://www.nytimes.com/2023/02/28/us/politics/desantis-primary-states.html.
20
A. Pretrial Proceedings
Simultaneously with his complaint, Mr. Warren filed a motion for
preliminary injunction requesting that the court order the Governor to rescind the
Executive Order and reinstate Mr. Warren to his constitutional office. See R.A.
Vol. I at 4. The Governor moved to dismiss, and the District Court held a
combined argument on the motions. See generally id. at 111-49.
On September 29, 2022, the District Court issued a written ruling denying
the motion to dismiss the federal claim, granting it as to the state-law claim, and
denying a preliminary injunction. R.A. Vol. I at 151-79. On the federal claim, the
District Court reasoned that Mr. Warren had engaged in “core political speech” and
that, as an elected official, he was entitled to First Amendment protection that is
“at least as great” as that applicable to a typical plaintiff. Id. at 160, 171. The
District Court rejected the Governor’s arguments that Mr. Warren’s statements
were either government speech entirely outside the First Amendment or employee
speech properly assessed under a deferential framework. Id. at 162-163 (rejecting
Governor’s reliance on Pickering v. Bd. of Educ., 391 U.S. 563 (1968)); R.A. Vol.
1 at 119-25. The District Court further reasoned that the record would “support a
finding that protected speech or activity was a motivating factor in [] Governor
[DeSantis’] decision” to suspend Mr. Warren. R.A. Vol. I at 167.
21
Once Mr. Warren made that showing, the District Court explained, the
Governor could attempt to prove the affirmative defense that he would have taken
the same action for legitimate, nondiscriminatory reasons. Id. at 168 (citing Mount
Healthy, 429 U.S. at 287). The District Court noted that “[t]he burden of proof on
the same-decision defense is on the defendant.” Id. The District Court further
observed that “the Governor has not (yet) asserted a same-decision defense” and
that, while the Governor had proffered a reason for the suspension—Mr. Warren’s
“declared refusal to prosecute abortion cases”—the record contained indications
that this proffered explanation was pretextual. Id. In particular, the District Court
highlighted evidence showing that there was “a political motive for the suspension”
that was inconsistent with the Governor’s explanation. Id. at 169; R.A. Vol. VII at
1263, 1269-71.
Shortly thereafter, Governor DeSantis filed his Answer in which he formally
pleaded the same-decision defense and articulated the factual basis on which he
would seek to prove it. R.A. Vol. I at 193. According to that pleading, the
Governor alleged that he had a single motivation: “[The Governor] would have
suspended Plaintiff for his expressed blanket refusal to prosecute certain cases in
the absence of any protected speech.” R.A. Vol. I at 193¶ 135 (citing Mount
Healthy, 429 U.S. at 287). Numerous times during discovery, the Governor
disavowed any other rationale for his action and made clear that he would seek to
22
prove that his motivations were solely those contained in the four corners of the
Executive Order. See, e.g., R.A. Vol. I at 212, Motion for Protective Order
(“Governor’s motives are fully expressed within the four corners of the suspension
order itself”); R.A. Vol. II at 246, Def. Motion to Bar Compelled Testimony
(same); see also R.A. Vol. II at 261-62, Defendant’s Response to Plaintiff’s First
set of Requests for Admissions; R.A. Vol. II at 290, PEX007 Defendant’s
Amended Responses and Objections to Plaintiff's First Set of Interrogatories. No.
2; R.A. Vol. II at 269. Defendant's Responses and Objections to Plaintiff's Second
Set of Interrogatories No. 5.
B. The Trial
The case proceeded to a three-day bench trial, which included testimony
from most of the Governor’s senior staff, including Mr. Keefe, General Counsel
Ryan Newman, Chief Deputy General Counsel Raymond Treadwell, and
Communications Director Taryn Fenske. The Governor did not testify. Although
he has been eager to speak publicly before and after trial about the suspension, he
secured a protective order prohibiting Mr. Warren from deposing him or calling
him as a witness. R.A. Vol. 1 at 199-217, R.A. Vol. I at 223-25; R.A. Vol. II at
230-54; R.A. Vol. III at 562.
Consistent with his Answer and his representations during discovery, the
Governor’s staff and counsel asserted at trial that his sole motivation for the
23
suspension was the one he had proffered in his affirmative defense and stated in
the Executive Order. See, e.g., R.A. Vol. VI at 1038:11 (Raymond Treadwell, the
Governor’s Chief Deputy General Counsel, testified that “every reason for Mr.
Warren’s suspension [was] set forth in the Executive Order[.]”); R.A. Vol. VII at
1116:5-12 (Ryan Newman, the Governor’s General Counsel, testified that the
suspension was motivated only by “the reasons set forth in the Executive Order.”).
The Governor’s counsel and his staff rejected any suggestion that, as the District
Court had posited in its pretrial ruling, there was “a political motive for the
suspension.” R.A. Vol. I at 169; R.A. Vol. V at 880:22-23, 902:19-23, 904:9-11,
R.A. Vol. VI at 1037:21-24.
C. The District Court’s Decision
The District Court issued its opinion on January 20, 2023. The court
concluded that Mr. Warren had proved his claim under the First Amendment by
establishing that his protected speech and associations were a substantial
motivating factor in the suspension. The District Court explained:
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. Soros as motivating factors in the decision.
24
R.A. Vol. VII at 1278. The District Court thus found a violation of the First
Amendment, a conclusion it repeated numerous times in its decision. Id. at 1221-
22, 1261, 1264, 1265, 1267, 1270, 1278-79.
The District Court then concluded that, in contrast, the Governor had failed
to prove the factual basis for his affirmative defense. Contrary to the Governor’s
proffered rationale, the District Court found that Mr. Warren “had no blanket
nonprosecution policies.” Id. at 1235, 1263, 1273. “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.” Id. at 1221. Thus, the court
found, Governor DeSantis’ “assertion that Mr. Warren neglected his duty or was
incompetent is incorrect.” Id. at 1235. Indeed, the District Court emphasized that
the record contained “no hint of misconduct” and that this question was “not close.”
Id. at 1235, 1271.
The District Court further rejected the Governor’s assertion that he was
actually motivated by the belief that Mr. Warren had “blanket nonprosecution
policies.” Id. at 1272, 1273 (“[The] nonprosecution policies were not the real
motivation for the suspension.”). The court found that the Governor’s reliance on
any such purported policies, including the portions of the Abortion Statement
quoted in the Executive Order, was simply pretext—“a way to justify a decision
already in the works on other grounds.” Id. at 1275. “[W]hether Mr. Warren
25
actually had any blanket nonprosecution policies [] did not matter. All that was
needed was a pretext to justify the suspension under the Florida Constitution.” Id.
at 1277-78 (noting that the purported non-prosecution policies and the “one
sentence” in the FJP Abortion Statement were merely “pretext”).
The District Court thus found that Mr. Warren had proved his case and
established a First Amendment violation, while the Governor had failed to prove
the facts supporting his affirmative defense. But rather than entering judgment for
Mr. Warren at that point, the District Court sua sponte embarked on its own
exploration of the various possible motivations underlying the suspension. R.A.
Vol. VII at 1263. The District Court separated the motivations it had identified
into those that violated federal law and those that violated state law. Id. at 1264-65,
1269-71. It held that the Governor’s “controlling motivation[s] for the suspension
[was] the interest in bringing down a reform prosecutor . . . and the political benefit
that would result.” Id. at 1277. Because in the District Court’s view that primary
motivation implicated only state law, the District Court held that the Eleventh
Amendment prohibited it from remedying the federal constitutional violation it had
identified.10
10
The District Court’s order noted that “[i]f the facts matter, the Governor can
simply rescind the suspension,” and that if he failed to do so, “it will be doubly
clear that the nonprosecution policies were not the real motivation.” R.A. at
VII at 1273 (emphasis added). After the ruling, Mr. Warren sent Governor
DeSantis a letter requesting reinstatement. Motion to Expedite, Dkt. 3 O’Neil
26
Mr. Warren timely appealed the District Court’s decision on February 14,
2023. Notice of Appeal Dkt. No. 1. The same day, Mr. Warren moved for
expedited treatment in this Court because the case “implicates interests of profound
importance to the public.” Motion to Expedite Appeal, Dkt. No. 3 at 9. On March
8, 2023, the Court granted Mr. Warren’s motion. Order Granting Motion to
Expedite Appeal, Dkt. No. 24.
III. Standard of Review
This Court reviews de novo the District Court’s interpretation and
application of binding precedent to questions of law. Horton v. Zant, 941 F.2d
1449, 1462 (11th Cir. 1991); Collier v. Turpin, 177 F.3d 1184, 1193 (11th Cir.
1999).
SUMMARY OF THE ARGUMENT
The District Court erred in holding that it lacked authority to remedy the
First Amendment violation it correctly identified. The legal basis for the decision
below is susceptible to two different interpretations. Both are incorrect and
warrant reversal.
Decl. Exhibit 1. Governor DeSantis responded only through a press release,

declining to reinstate Mr. Warren, doubling down on his proffered “blanket
non-prosecution policy” rationale, and dismissing the District Court’s
admonitions as “merely opinions” he “need not address.” Motion to Expedite,
Dkt. 3 O’Neil Decl. Exhibit 2.
27
On the first interpretation, the court held that it could not issue injunctive
relief because the conduct that it deemed a First Amendment violation also
violated state law. That reflects a fundamental misunderstanding of the Eleventh
Amendment, which permits a federal court to provide prospective relief of the kind
Mr. Warren requested when, as here, the court identifies a federal constitutional
violation. That authority does not disappear because the conduct implicates state
law or because the state-law violations are “controlling,” dominant, or “essential to
the outcome.” R.A. Vol. VII at 1277, 1279.
On the second, alternative interpretation of the decision below, the court
attempted to evaluate the case under the “same-decision” affirmative defense set
forth in Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977). Succeeding on that defense required the Governor (1) to plead and prove
that he acted for a reason that was (2) otherwise legitimate and (3) did not itself
violate the First Amendment. Stanley, 219 F.3d at 1293. None of those three
elements was satisfied here.
First, the court rejected the motivation the Governor pleaded. R.A. Vol. VII
at 1278. But instead of then entering judgment for Mr. Warren on the ground that
the Governor had failed to prove his affirmative defense, the court launched its
own search for the Governor’s true motivations. Id. at 1226-27, 1263. That
approach conflicts with the basic nature of an affirmative defense, and it deprived
28
Mr. Warren of the fair notice that the Mount Healthy framework is intended to
provide.
The court compounded its mistake, as well as the resulting unfairness to Mr.
Warren, by attributing to the Governor a motivation that the Governor consistently
disavowed before, during, and after trial. The effect of the court’s errors was to
improperly shift the burden of proving ultimate causation to Mr. Warren, when
under Mount Healthy the Governor bore the burden to plead facts alleging his true
motivation and then to prove them. Once the Governor failed to persuade the court
that his proffered explanation was credible, the case should have ended and Mr.
Warren should have prevailed.
Second, the court attributed to the Governor a motivation that was
illegitimate because, as the court emphasized, it violated state law. Id. at 1279.
Counsel is unaware of any case in which a court held that a plaintiff had proved a
First Amendment claim but then excused the defendant from liability on the
ground that the defendant’s true basis for acting was illegal for some other reason.
It is both unsurprising that there are no such cases—no rational defendant would
attempt to plead an affirmative defense that constitutes an admission of liability—
and consistent with the purpose of Mount Healthy. That framework ensures that a
plaintiff who would have been fired anyway for lawful reasons is not better off
because he engaged in First Amendment-protected activity. When, as here, there
29
are no lawful grounds on which to terminate the plaintiff, reinstatement is
appropriate.
Third, and most fundamental, the reason the court concluded that the
Governor suspended Mr. Warren was a blatant violation of the First Amendment.
The court found that the Governor was actually motivated by the desire for the
“political benefit” that would accrue from “bringing down” an ideological foil.
R.A. Vol. VII at 1277. In other words, the suspension was a way for the Governor
to promote his defining political views against “wokeness” and “progressivism” by
firing a “woke ideologue” and condemning such beliefs. R.A. Vol. III at 584.
That is the textbook definition of a politically motivated, viewpoint-discriminatory
termination. Indeed, the Governor himself has described it just that way,
campaigning on the statement that he suspended Mr. Warren to “send a signal” that
the “Soros model” was not welcome in Florida. DeSantis Memoir, supra, at 239.
On the facts the District Court found, the suspension therefore violated the First
Amendment.
ARGUMENT
Whether read as an interpretation of the Eleventh Amendment or instead as
an attempt to apply the framework applicable to First Amendment retaliation
claims, the decision below was incorrect. The suspension violated Mr. Warren’s
federal constitutional rights, and the court had authority to reinstate him.
30
I. The District Court Erred In Holding that the Eleventh Amendment

Barred It from Ordering Reinstatement
The District Court fundamentally misapprehended the function of the
Eleventh Amendment in evaluating the available remedies for the Governor’s
unconstitutional conduct. Contrary to the court’s conclusion, the Eleventh
Amendment does not preclude a federal court from ordering prospective injunctive
relief against a state officer for violations of the federal Constitution simply
because the same conduct also, or even predominantly, violates state law.
A district court’s federal question jurisdiction includes the power to enjoin a
state official from acting in a manner that is contrary to the federal Constitution.
Ex Parte Young, 209 U.S. 123, 159-60 (1908). Although the Eleventh Amendment
insulates the State itself from a damages suit, it does not prevent federal courts
from “vindicat[ing] federal rights and hold[ing] state officials responsible to the
supreme authority of the United States” by enjoining ongoing violations of federal
law. Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 293 (1997); McCarthy v.
Hawkins, 381 F.3d 407, 418-19 (5th Cir. 2004) (citing Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 105 (1984)); see also Edelman v. Jordan, 415
U.S. 651, 669 (1974). After all, as the Supreme Court has held, when a state
officer’s actions contradict the Constitution’s protections, he is “stripped of his
official or representative character” and cannot claim immunity by virtue of the
office he holds. Young, 209 U.S. at 159-60.
31
Thus, Eleventh Amendment immunity is a threshold question decided at the
pleading stage, before consideration of the merits, because it goes directly to a
federal court’s power to hear the underlying claim. Verizon Md., Inc. v. Public
Serv. Comm’n of Md., 535 U.S. 635, 646 (2002); see also Young, 209 U.S. at 160-
61. To determine whether the Eleventh Amendment bars suit, “a court need only
conduct a straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.”
Verizon Md., 535 U.S. at 645 (quoting Idaho, 521 U.S. at 296); see also Virginia
Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255-56 (2011) (same).
Mr. Warren sought relief that is “properly characterized as prospective”—an
injunction reinstating him to the position for which he was duly elected and a
declaration that his suspension violated the federal Constitution. Id.; R.A. Vol. VII
at 1224. The case was therefore properly within the federal court’s jurisdiction.
And after trial, the Court correctly concluded that the suspension in fact “violated
the First Amendment.” R.A. Vol. VII at 1278-79. Based on that finding, the court
was empowered to issue prospective relief remedying the violation.
The District Court erred by examining the implications of the same conduct
under state law. The court identified a number of possible reasons for the
unconstitutional conduct and sorted them into whether they violated federal law,
state law, or both. Id. at 1226-27. As part of that exercise, the court determined
32
that although the Governor “violated the First Amendment,” his “controlling
motivations” violated the Florida Constitution, and those state-law violations were
“essential to the outcome.” Id. at 1250, 1277-79. But the Eleventh Amendment is
unconcerned with, and its application in no way turns on, whether federal or state
law plays the dominant, “essential,” or “controlling” role in the unconstitutional
conduct. Id. As the Supreme Court has made clear, the Eleventh Amendment does
not deprive a court of jurisdiction to hear a federal claim even if the underlying
conduct would independently violate state law. See, e.g., Wisconsin Dept. of Corr.
v. Schacht, 524 U.S. 381, 391 (1998). What matters is that, as the District Court
correctly concluded here, the suspension “violated the First Amendment.” R.A.
Vol. VII at 1278. The District Court’s contrary holding is incorrect.
II. The District Court Misapplied the Legal Framework for

Adjudicating First Amendment Retaliation Claims
The District Court’s decision could instead be construed as an effort to
evaluate Mr. Warren’s claim of First Amendment retaliation under the framework
established by Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977). To the extent the court intended to adopt the conclusion that the Governor
prevailed under that framework, the court erred for several reasons, each of which
alone would warrant reversal.
33
A. Mr. Warren Proved his First Amendment Retaliation Case
The District Court correctly held that “Mr. Warren has easily carried his
burden,” R.A. Vol. VII at 1255-56, of showing that “his speech or act [was]
constitutionally protected,” that there was an “adverse action,” and that there was
“a causal connection between the retaliatory actions and the adverse effect on
speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). That
conclusion was correct and placed the burden of proof squarely on the Governor.
First, the District Court concluded that the record was “chock full of core
political speech.” R.A. Vol. VII at 1256. It did so by correctly recognizing that Mr.
Warren’s status as “an elected official, not a rank-and-file employee, does not
change the result” and that, “[i]f anything, the distinction cuts the other way.” Id. at
1257. As the Supreme Court unanimously observed last Term, “[t]he First
Amendment surely promises an elected representative . . . the right to speak freely
on questions of government policy.” Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct.
1253, 1261 (2022); Bond v. Floyd, 385 U.S. 116, 135-36 (1966) (“The manifest
function of the First Amendment in a representative government requires that
[elected officials] be given the widest latitude to express their views on issues of
policy”); Wood v. Georgia, 370 U.S. 375, 394-95 (1962) (“The petitioner was an
elected official and had the right to enter the field of political controversy . . . .”).
Mr. Warren’s status as an elected official “makes it all the more imperative that
34
[he] be allowed to freely express” his viewpoints on controversial topics. Wilson,
142 S. Ct. at 1261 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 781
(2002)).
Second, Mr. Warren’s suspension without pay is an adverse action. Id. at
1260-61 (stating that removal from employment is an “easy to identify” adverse
action). “The issue is not close.” R.A. at VII at 1266.
Third, Mr. Warren’s speech and associations “were substantial and
motivating factors in the decision to suspend Mr. Warren.” Id. at 1262. As the
District Court explained, “[t]he Governor could hardly contend otherwise.” Id.
His speech was cited in and indeed attached to the executive order of suspension,
and his associations featured prominently in the Governor’s “media event
announcing the suspension and in his appearance on the Carlson show touting the
decision.” Id.
B. The Governor Was Required Affirmatively To Plead a

Legitimate, Non-Discriminatory Reason for the Suspension
and Then to Prove That Reason
Under Mount Healthy, once a plaintiff has proved his case, as Mr. Warren
did here, the case is over and the plaintiff prevails unless the defendant can prove
the affirmative defense that the plaintiff’s dismissal would have occurred
regardless of the constitutionally protected activity. See, e.g., Acevedo-Diaz v.
Aponte, 1 F.3d 62, 66-67 (1st Cir. 1993) (“[T]he plaintiff-employee will prevail
35
unless” the defendant proves that the adverse action “would have occurred in any
event for nondiscriminatory reasons.”) (cited by McCabe v. Sharrett, 12 F.3d 1558,
1565 n.8 (11th Cir.1994)); see also Padilla-Garcia v. Guillermo Rodriguez, 212
F.3d 69, 77 n.8 (1st Cir. 2000) (same).
This so-called “same decision” defense is “an affirmative defense to
liability.”11 Stanley, 219 F.3d at 1296 n.27 (11th Cir. 2000). “It is settled law that
the employer bears the burden of proof where [the] defense is asserted.” Harrell v.
University of Montevallo, 673 F. Supp. 430, 436 (N.D. Ala. 1987), aff’d, 861 F.2d
725 (11th Cir. 1988). The defendant must plead facts establishing that he was in
fact motivated by a legitimate reason and must then prove those facts by a
preponderance. Stanley, 219 F.3d at 1293; see also Gomez v. Bird Auto., LLC, 411
F. Supp. 3d 1332, 1335 (S.D. Fla. 2019).
Accordingly, after Mr. Warren carried his burden, the Governor could
prevail only if he (1) proved that he was in fact motivated by the reasons he
asserted, and that those reasons were (2) legitimate and (3) not themselves a
11
While the broad employment framework is helpful as a comparator to Mr.
Warren, it does not provide a direct analogy. Mr. Warren was directly elected
to a state constitutional office by the people of Hillsborough County. Governor
DeSantis is not Mr. Warren’s employer, and as such, Governor DeSantis is
limited by Art. IV § 7(a) of the Florida Constitution to specific circumstances
under which he can suspend Mr. Warren. See Fla. Const. art. IV, § 7(a).
Based on Governor DeSantis’ allegations, Mr. Warren may only be suspended
for neglect of duty and incompetence. Id.
36
violation of the First Amendment. Stanley, 219 F.3d at 1293. The Governor failed
on each of those elements.
C. Governor DeSantis Failed to Prove the Motivation He Pled
Governor DeSantis failed at trial to prove the facts he pleaded as the basis
for his affirmative defense. That alone should have resulted in entry of judgment
in favor of Mr. Warren.
In his Answer, the Governor made explicit the single basis on which he
would seek to establish the Mount Healthy defense: that the decision to suspend Mr.
Warren was motivated by Mr. Warren’s “expressed blanket refusal to prosecute
certain cases.” R.A. Vol. I at 193 ¶ 135.
The court squarely and completely rejected that factual assertion as well as
the argument it was intended to support. The conclusion could not have been more
direct. The court stated: “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.”
R.A. Vol. VII at 1221. In particular, the court found that, contrary to the
Governor’s allegation, Mr. Warren “had no blanket non-prosecution policies.” Id.
at 1221, 1247, 1263. His “well-established policy, followed in every case by every
prosecutor in the office, was to exercise prosecutorial discretion at every stage of
every case.” Id. at 1221. And the court rejected the Governor’s assertion that he
37
was actually motivated by any belief that Mr. Warren had such policies. Id. at
1272-73(“[T]he . . . nonprosecution policies were not the real motivation for the
suspension”). The Governor’s reliance on any such purported policies or on any
statements in the FJP letters, the District Court concluded, was just “a way to
justify a decision already in the works on other grounds.” Id. at 1275. According
to the court, it “did not matter” to the Governor “whether Mr. Warren actually had
any blanket nonprosecution policies.” Id. at 1277-78. Their role was simply to
supply “a pretext to justify the suspension under the Florida Constitution.” Id.; see
id. at 1278 (finding that purported nonprosecution policies and the “one sentence”
in the Abortion Statement were “pretext”).
That conclusion should have been the end of the case: Mr. Warren carried
his burden and the Governor did not. A defendant’s answer containing an
affirmative defense is the functional equivalent of a plaintiff’s complaint
containing affirmative claims. See, e.g., Morrison v. Exec. Aircraft Refinishing,
Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005); Gomez, 411 F. Supp. 3d at 1335.
Just as the “plaintiff is the master of [his] complaint,” Caterpillar, Inc. v. Williams,
482 U.S. 386, 398-99 (1987), the defendant can choose what facts to allege as the
reason it took the challenged action. Having made that choice, “the defendant
bears the burden of persuading the factfinder that its reason is credible.” Padilla,
38
212 F.3d at 77-78. The Governor failed to persuade the court that his reason was
credible, and his affirmative defense therefore failed.
The defendant’s obligation to prove the facts he pleads serves critical
interests of fairness and notice. When a defendant asserts facts supporting an
affirmative defense, he provides notice to the court and to the plaintiff what the
issue for trial will be and what the defendant intends to prove. See Crutcher v.
MultiPlan, Inc., 22 F.4th 756, 765 (8th Cir. 2022) (applying pre-“Twiqbal” cases
and holding the Rule 8(c) affirmative defense “pleading requirement is intended to
give the opposing party both notice of the affirmative defense and an opportunity
to rebut it”). Holding the defendant to his allegations honors the basic principle—a
cornerstone of the adversarial system—that courts are generally bound to decide
the case before them based on the evidence and the theories presented by the
parties. See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“We rely
on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.”).
Instead of ruling for Mr. Warren, the court embarked on its own unguided
search for possible facts and motivations different from the single one the
Governor had pleaded. But the assertion of a Mount Healthy affirmative defense is
not a license for the court to scour the record for possible motivations that the
defendant might have, but chose not to, allege. In that respect, Mounty Healthy “is
39
significantly different from the device used in other employment discrimination
contexts, such as Title VII cases,” Padilla, 212 F.3d at 77, where the defendant’s
mere articulation of a legitimate reason shifts the burden back to the plaintiff to
prove discriminatory motive. See Acevedo-Díaz, 1 F.3d at 67. Yet that is
effectively how the court approached this case. Under Mount Healthy, Mr. Warren
did not have the burden to prove that his speech was the driving motivation of the
suspension; the Governor had the burden to prove that it was not.
For the Governor to win on his same-decision defense, it was not enough for
the District Court to conclude that the Governor would have suspended Mr.
Warren for some reason other than his protected speech. To carry his burden and
defeat Mr. Warren’s claim, the Governor was required to prove the reason he
claimed he would. His failure to do so warrants reversal.
D. The Governor Specifically Disavowed the Motivation the

District Court Adopted
Compounding the District Court’s error and the procedural unfairness to Mr.
Warren, the District Court ultimately landed on a “controlling motivation[]” that
the Governor himself had specifically disavowed at every turn. R.A. Vol. VII at
1277.
In the District Court’s view, the Governor actually suspended Mr. Warren
because of the “political benefit that would result” from “bringing down” a
“reform prosecutor.” Id. Before trial, the Governor and his counsel rejected any
40
allegation that he entertained any motivation other than that set forth in the four
corners of the Executive Order. See supra at pp. 22-23. During trial, members of
Governor DeSantis’ administration all disavowed any political motivation. R.A.
Vol. V at 880:22-23 (Fenske Testimony); R.A. Vol. VI at 1037:21-24, 1038:11-13
(Treadwell Testimony); R.A. Vol. VII at 1116:5-12 (Newman Testimony). The
court directly asked Taryn Fenske, the Governor’s communications chief, whether
“the fact that Mr. Warren was perceived to be a left-leaning prosecutor [was]
relevant to his suspension at all[.]” R.A. Vol. V at 902:19-23. She insisted that it
was not and that the Governor’s reasons were “all outlined in the Executive Order.”
Id.; see also id. at 902:1-4. When pressed by the Court, Ms. Fenske reiterated that
politics “had nothing to do with [his suspension].” Id.at 904:9-11. Similarly, the
Court directly asked the Governor’s counsel at trial, “[o]ther than [the four writings
cited in the Executive Order], do you have anything that you think rises to the level
of neglect of duty or incompetence?” Counsel responded unequivocally: “Other
than those four, no, Your Honor.” R.A. Vol. VII at 1205:4-7.
Since trial, the Governor has continued to refute the District Court’s
“controlling motivation” finding, defiantly insisting that he acted for the reason the
court dismissed as pretext—that “Mr. Warren signed a statement refusing to
prosecute the laws of the land.” Motion to Expedite, Dkt. 3 O’Neil Decl. Exhibit 2,
DeSantis Says He Won’t Reinstate Suspended Hillsborough Prosecutor Andrew
41
Warren, WUSF Public Media (Jan. 26, 2023, 6:55 AM),
https://wusfnews.wusf.usf.edu/politics-issues/2023-01-26/desantis-says-he-wont-
reinstate-suspended-hillsborough-prosecutor-andrew-warren.
Thus, Governor DeSantis not only failed to prove that he suspended Mr.
Warren for reasons other than his protected speech, but he also specifically denied
that there were any other reasons for the suspension. Because Mount Healthy
requires defendants to pled and prove the lawful basis for their actions, the District
Court erred by conjuring and crediting an alternative motivation for Mr. Warren’s
suspension that Governor DeSantis did not plead, did not prove, and has
specifically disavowed. Cf. Jackson v. State of Ala. State Tenure Comm’n, 405
F.3d 1276, 1280 (11th Cir. 2005) (noting that defendant could not make a
successful Mount Healthy defense when no reason, legitimate or otherwise, was
proffered for the firing).
E. The Motivation the Court Attributed to the Governor was

Unlawful for Other Reasons
Under Mount Healthy, not only must the defendant prove his actual
motivation, but that motivation must reflect a “legitimate reason” for his action.
See Stanley, 219 F.3d at 1293; see Furnco Constr. Corp. v. Waters, 438 U.S. 567,
578 (1978) (requiring defendants in an employment discrimination action to
proffer a “justification which is reasonably related to the achievement of some
legitimate goal”). Thus, even if the court were permitted to find that a defendant
42
satisfied the same-decision defense based on a motivation he did not plead, the
motivation the court adopts must be otherwise lawful. Stanley, 219 F.3d at 1296
(instructing defendant to show “an adequate lawful basis” that “existed for the
termination”).
The District Court concluded that the Governor’s “controlling
motivations”—the “anticipated political benefits” from “bringing down” a
progressive prosecutor—were illegal under state law because they were not lawful
bases for suspension. R.A. VII at 1273, 1277. Those motivations therefore could
not supply the “legitimate reason” that Mount Healthy requires. Stanley, 219 F.3d
at 1293.
Counsel is unaware of any case in this Circuit—or indeed any other—in
which a court has denied relief under Mount Healthy where the plaintiff
established a First Amendment violation and where, as here, the record reflects that
any other bases for adverse action were independently unlawful. The absence of
any such precedent is unsurprising; as explained above, a defendant must articulate,
plead, and prove the alternate reasons for which he would have taken adverse
action, and no rational defendant would affirmatively seek to prove a rationale that
would constitute an admission of liability.
This result is also consistent with the purpose of the Mount Healthy
framework. Affording the defendant an opportunity to prove the same-decision
43
defense “ensures that a plaintiff-employee who would have been dismissed in any
event—on legitimate grounds—is not placed in a better position merely by virtue
of the exercise of a constitutional right irrelevant to the adverse employment
action.” Acevedo-Diaz, 1 F.3d at 66. But where no legitimate other ground exists
for adverse action, a plaintiff terminated in violation of the First Amendment could
never have been lawfully removed in the first place and deserves reinstatement.
F. The Motivation the Court Attributed to the Governor Itself

Violates the First Amendment
These errors alone would require reversal of the decision below. But there is
another, even more fundamental flaw in that decision: what the court described as
the Governor’s “controlling motivation[]” was itself a blatant violation of the First
Amendment. R.A. Vol. VII at 1277.
The court found that the Governor suspended Mr. Warren because he
wanted the “political benefit” that would result from “bringing down” a “reform
prosecutor.” Id. at 1277. Inexplicably and without citing any support, the court
stated that “the First Amendment does not speak to the matter” of firing a public
official for political reasons. Id. at 1271. That was egregiously incorrect. As the
District Court itself recognized at the motion to dismiss stage, “[t]he Supreme
Court has made clear” that terminations based on political considerations violate
the First Amendment. R.A. Vol. I at 170. In two foundational cases on which the
District Court relied, Elrod v. Burns, 427 U.S. 347, 367 (1976) and Branti v. Finkel,
44
445 U.S. 507, 518 (1980), “the [Supreme] Court held that the First Amendment []
bar[s] politically motivated employment” decisions. Id.; Akers v. Caperton, 998
F.2d 220, 224 (4th Cir. 1993) (citing Rutan v. Republican Party, 497 U.S. 62, 63
(1990)).
That is why, in its decision denying the Governor’s motion to dismiss the
First Amendment claim, the District Court highlighted evidence suggesting that
there was a political motivation for the suspension, which would defeat the
Governor’s effort to establish the Mount Healthy defense. R.A. Vol. VII at 1244-
45. The parties tried the case based on the court’s correct framing of the issue: Mr.
Warren sought to prove that the suspension was politically motivated, while the
Governor sought to prove that he would have made the same decision without
regard to politics and solely because of the “expressed blanket refusal to prosecute
certain cases.” R.A. Vol. I at 193 ¶ 135. The District Court found as a factual
matter that Mr. Warren was correct, but incorrectly concluded that the First
Amendment did not prohibit such a politically motivated suspension after all.
The District Court’s error stemmed from several basic misconceptions about
the First Amendment. First, the court appeared to reason that the Governor’s
politically motivated suspension offended the First Amendment only if the
Governor’s animus stemmed from Mr. Warren’s party affiliation, rather than his
political beliefs more broadly. R.A. Vol. VII at 1227. But the First Amendment
45
protects against retaliatory actions motivated by disagreements about political
ideology, philosophy, or viewpoint, not just those about political party. See
Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909, 914 n.2 (6th Cir. 1991)
(pointing out that the First Amendment protections “appl[y] to political differences
of any kind, not merely differences in party membership”); see also Williams v.
City of River Rouge, 909 F.2d 151, 153 n.4 (6th Cir. 1990) (noting that “‘political
affiliation’ refers to commonality of political purpose and support, not [just]
political party membership”).
Second, the District Court reasoned that the Governor’s political motivations
were permissible if they targeted Mr. Warren because of his “status”—that he
embraced “reform prosecutor” ideas—and not because of “what Mr. Warren said”
about those beliefs. R.A. Vol. VII at 1265; R.A. Vol. VII at 1193 (emphasis
added). That, too, is incorrect. “If the First Amendment protects a public employee
from discharge based on what he has said, it must also protect him from discharge
based on what he believes.” Branti, 445 U.S. at 515. Thus, the Supreme Court has
emphasized that the First Amendment protects political viewpoints and ideology to
the same extent as traditional speech; the government may not take adverse action
“when the specific motivating ideology or the opinion or perspective of the speaker
is the rationale.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995).
46
The District Court’s factual findings and the Governor’s own words make
clear that it was Mr. Warren’s beliefs and opinions that gave him the “status” of a
“reform prosecutor.” R.A. Vol. VII at 1265. In the lexicon of the Governor and his
staff, a prosecutor who “do[es not] enforce the law” denoted, and served as
shorthand for, a “Soros-backed prosecutor[],” a “leftist prosecutor,” a “so-called
progressive” prosecutor, or a prosecutor who embraced “woke ideolog[y].” R.A.
Vol. V at 830:21-22 (Keefe Testimony), 879:10 (Fenske Testimony); Charlie Kirk,
Live Now: Unite and Win Rally in PHX AZ -powered By Turning Point ACTION,
YouTube (Aug. 14, 2022), https://www.youtube.com/watch?v=-b1W-
C9PIVw&t=4578s; DeSantis Memoir, supra, at 238; R.A. Vol. V at 873:20-22
(Fenske Testimony). In his own words, Keefe targeted Mr. Warren because he had
“taken [up] the mantle” of that “world view” and had become an “expresser or
conduit” for such beliefs. R.A. Vol. VII at 1236; R.A. Vol. V at 826:18-19. To “be”
a “reform prosecutor” in the Governor’s eyes was thus to have reform prosecutor
viewpoints. Indeed, that is exactly how the District Court framed the discussion of
why Mr. Warren “was a reform prosecutor.” R.A. Vol. VII at 1226. The
difference between someone who is a “left-leaning” or “reform” prosecutor and
someone who is a “law-and-order” “or right-leaning” one, the court explained, is
that the two have “contrasting viewpoints on prosecutorial issues.” Id. (emphasis
added).
47
The court also referenced as a motivation for the suspension Mr. Warren’s
“performance” as State Attorney—“how he did his job.” Id. at 1226, 1263. But
the court’s own factual findings foreclose any conclusion that the Governor was
motivated by disagreement with actual prosecution decisions Mr. Warren made in
office. As the court found, “[t]he actual facts” of Mr. Warren’s policies or actions
“did not matter” to the Governor and his staff. Id. at 1277. The Governor “did not
wish to know” how Mr. Warren actually did his job or what effect his policies had
“on the actual conduct of the Office,” so Keefe and the lawyers “made no effort to
determine what” Mr. Warren’s actual practices were. Id. at 1275-76. Indeed, the
first time the Governor’s staff asked for any information about Mr. Warren’s actual
performance as State Attorney was after the suspension. R.A. Vol. V at 751:13-19.
The only information the Governor had about Mr. Warren’s actual performance
was the Bike Stop Policy and the Low-Level Offense Policy, which the court
found “were not the real motivation for the suspension.” R.A. Vol. VII at 1273
(emphasis added).12 And the only basis for the Governor’s conclusion that Mr.
12
The court specifically found that the quoted language from the FJP Abortion
Statement, which the Governor described as an “expressed blanket refusal to
prosecute certain cases,” was purely a “pretext” for “a decision already in the
works on other grounds.” R.A. Vol. VII at 1275. In any event, even that
pretext was protected speech. As this Court has explained, the “enterprise of
labeling certain verbal or written communications ‘speech’ and others ‘conduct’
is unprincipled and susceptible to manipulation.” Wollschlaeger v. Governor,
Fla., 848 F.3d 1293, 1308 (11th Cir. 2017).
48
Warren “was” a “reform prosecutor” were the “impressions” of Mr. Keefe’s law
enforcement friends that Mr. Warren was a “leading” believer in the “reform
prosecutor” approach.13 See R.A. VII at 1275; R.A. V at 739:8, 742:24-8, 744:10-
17.
That the Governor acted because he disapproved of Mr. Warren’s beliefs
and ideas renders the suspension a First Amendment violation. That the Governor
did so specifically for “political benefit” makes it doubly so. R.A. Vol. VII at 1277.
The “political narrative” that the District Court correctly identified permeates the
record, and the “political benefit” that motivated the Governor drove every step of
the suspension. R.A. Vol. VII at 1227, 1277. It was the reason the Governor
asked Mr. Keefe to find a “so-called progressive” prosecutor who “had Soros
support,” DeSantis Memoir, supra, at 238; why Mr. Keefe honed in on Mr. Warren
as a ripe target to “bring[] down,” R.A. Vol. VII at 1277; why Mr. Keefe based his
draft explaining the reasons for the suspension on Mr. Warren’s “associations” and
“affiliations” with advocacy organizations supporting the “progressive” movement,
13
For the same reasons, any factual finding that the Governor was genuinely
motivated by disagreements with Mr. Warren’s actual prosecutorial decisions,
as distinct from Mr. Warren’s beliefs about criminal justice issues, would have
been clearly erroneous. As the District Court observed, the record contains no
evidence “of even a single case in which discretion was not exercised” by Mr.
Warren, R.A. Vol. VII at 1273, and the District Court’s findings establish that
the Governor neither cared about nor wished to find out how Mr. Warren
actually performed his job as State Attorney. Id. at 1275.
49
R.A. Vol. III at 472; why the Governor’s lawyers recognized that Keefe’s reasons
were “valuable to the larger political narrative,” R.A. Vol. III at 523, and therefore
included them in the Governor’s talking points; why the Governor’s messaging
described Mr. Warren as a “woke ideologue,” R.A. Vol. III at 584; why the
Governor’s press aides teased that the announcement would cause the “liberal
media meltdown of the year,” R.A. Vol. III at 588; and why, when asked on
national television the night of the suspension why he suspended Mr. Warren, the
Governor immediately referred to the need to counter the political plans of his
“progressive” opponents, R.A. Vol. I at 459 0:52-1:26 (Tucker Carlson Tonight);
R.A. Vol. V at 880:20-23 (Fenske Testimony); R.A. Vol. VI at 1016:2-4
(Treadwell Testimony); R.A. Vol. VII at 1241, 1263, 1269-70 (Opinion); DeSantis
Memoir, supra, at 238.
All of this served the political purpose of elevating one set of ideas over
another. That is the “political benefit” the District Court identified: The
suspension was a prime opportunity for the Governor to promote his signature
views on “anti-woke[ness],” R.A. Vol. VII at 1133, and condemn the views of
those whom he rejects as “progressive” or “woke” by “bringing down” one of their
“leader[s].” R.A. Vol. VII at 1227, 1277. And that is the very definition of
viewpoint discrimination. The Governor “surely ha[s] the right to promote” his
beliefs about social and criminal justice issues, but he “cannot engage in ‘bias,
50
censorship or preference regarding [another] speaker’s point of view’” through
politically motivated firings. Otto, 981 F.3d at 864 (quoting Messer v. City of
Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992)); Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (explaining that the
First Amendment prohibits government officials from “favor[ing] some viewpoints
or ideas at the expense of others.”).
Indeed, the Governor has essentially admitted that the goal of suspending Mr.
Warren was to denigrate progressive ideas. In his memoir, which he has been
promoting on a “book tour” throughout the country, the Governor wrote that the
suspension “sent a clear signal to other prosecutors around Florida that the Soros
model” would not be tolerated in Florida. DeSantis Memoir, supra, at 239. The
Governor’s purpose, in short, was to supress certain viewpoints and beliefs. That
is “censorship in its purest form.” Circle Schs. v. Pappert, 381 F.3d 172, 180 (3d
Cir. 2004); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(Jackson, J.) (“If there is any fixed star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion . . . .”).
On the facts the District Court found, the suspension violated the First
Amendment.
51
CONCLUSION
For the foregoing reasons, the judgment below should be reversed and this
Court should remand with instructions to enter a permanent injunction reinstating
Mr. Warren.
Dated: March 13, 2023 Respectfully submitted,

/s/ David O’Neil
David A. O’Neil
(202) 383-8000
Counsel for Plaintiff-Appellant Andrew Warren
52
CERTIFICATE OF COMPLIANCE
I hereby certify that:
1. This brief complies with the type-volume limitation of Rule 27(d)(1)
of the Federal Rules of Appellate Procedure because it contains approximately
11,915 words, excluding the parts of the brief exempted by Federal Rule of
Appellate Procedure 32(a).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Rule 32(a)(6)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point font.
Date: March 13, 2023

/s/ David O’Neil
David A. O’Neil
(202) 383-8000
53
CERTIFICATE OF SERVICE
I hereby certify that on March 13, 2023, the foregoing Brief of Plaintiff-
Appellant Andrew Warren was filed with the Clerk of the United States Court of
Appeals for the Eleventh Circuit via the Court’s electronic filing system and served
on all counsel of record via CM/ECF.
Date: March 13, 2023

/s/ David O’Neil
David A. O’Neil
(202) 383-8000
54

Warren Initial Appellate Brief March 2023

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USCA11 Case: 23-10459 Document: 39 Date Filed: 03/13/2023 Page: 1 of 66

United States Court of Appeals

RON DE SANTIS , individually and

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

PLAINTIFF-APPELLANT’S OPENING BRIEF

DAVID A. O’NEIL DAVID B. SINGER

STATEMENT OF INTERESTED PARTIES

Plaintiff-Appellant certifies that the following is a complete list of interested

persons as required by Federal Rule of Appellate Procedure 26.1 and Eleventh

Circuit Rule 26.1:

1. Aaron, Jeffrey M., Attorney for Defendant-Appellee

2. Cabou, Jean-Jacques, Attorney for Plaintiff-Appellant

3. Casselman, Margo R., Attorney for Plaintiff-Appellant

4. Christmas, Natalie, Attorney for Defendant-Appellee

5. Costello, David M., Attorney for Defendant-Appellee

6. Danneman, Alexis, Attorney for Plaintiff-Appellant

7. Debevoise & Plimpton, LLP, Attorneys for Plaintiff-Appellant

8. DeSantis, Ron, Defendant-Appellee

9. DeSousa, Jeffrey P., Attorney for Defendant-Appellee

10. Florida Office of the Attorney General, Attorneys for Defendant-

11. Gray Robinson, P.A., Attorneys for Defendant-Appellee

12. Grouev, Zachary, Attorney for Defendant-Appellee

13. Hinkle, Robert L., District Court Judge

14. Levesque, George T., Attorney for Defendant-Appellee

15. Lopez, Susan, Interested Party

16. Moody, Ashley, Attorney for Defendant-Appellee

17. Newton, Matthew T., Attorney for Plaintiff-Appellant

18. Older, Lundy, Koch & Martino, Attorneys for Plaintiff-Appellant

19. O’Neil, David A., Attorney for Plaintiff-Appellant

20. Pagan-Figueroa, Marisa L., Attorney for Plaintiff-Appellant

21. Percival, James H., Attorney for Defendant-Appellee

22. Perkins Coie LLP, Attorneys for Plaintiff-Appellant

23. Schenck, Robert S., Attorney for Defendant-Appellee

24. Singer, David B., Attorney for Plaintiff-Appellant

25. Singh, Samantha B., Attorney for Plaintiff-Appellant

26. Sundararajan, Anagha, Attorney for Plaintiff-Appellant

27. Swain, Alexandra P., Attorney for Plaintiff-Appellant

28. Tien, Jane, Attorney for Plaintiff-Appellant

29. Warren, Andrew, Plaintiff-Appellant

30. Whitaker, Henry C., Attorney for Defendant-Appellee

No publicly traded company or corporation has an interest in the outcome of

this case or appeal.

[REST OF PAGE INTENTIONALLY LEFT BLANK]

Dated: March 13, 2023

Counsel for Plaintiff-Appellant

STATEMENT REGARDING ORAL ARGUMENT

before it and effectively resolving the appeal.

STATEMENT OF INTERESTED PARTIES....................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT...........................................................i

JURISDICTIONAL STATEMENT ..................................................................................... viii

PRELIMINARY STATEMENT ............................................................................................... 3

STATEMENT OF THE CASE .................................................................................................. 6

I. Factual Background .............................................................................................. 6

A. Mr. Warren Advocated for Criminal Justice Reform as a

B. As a Prosecutor, Mr. Warren Implemented Policies Requiring

C. Governor DeSantis Instructed His Staff to Find Prosecutors

D. The Governor’s Office Targeted Mr. Warren for Suspension

E. The Governor Announced the Suspension by Focusing on Mr.

F. The Governor Has Continued to Justify the Suspension on the