Lawsuit over ‘authorized’ courthouse burglary bounces back to state court

A judge has dismissed a federal lawsuit brought by security experts who were arrested while conducting a state-authorized break-in at the Dallas County Courthouse in 2019.

The judge found that the security experts had failed to prove they had a “constitutional right not to be arrested” given the unique circumstances surrounding the break-in.

The dismissal, however, doesn’t mark an end to the litigation, as the judge remanded other, significant portions of the case back to state court where it was first filed in July 2021.

The lawsuit was initiated by Gary DeMercurio and Justin Wynn, who were arrested and charged with burglary and possession of burglary tools shortly after they entered the Dallas County Courthouse in the early morning hours of Sept. 11, 2019. At the time, the two men were employed by the Colorado-based cybersecurity company Coalfire Labs, which was under contract with the Iowa Judicial Branch to analyze the security of the state’s court system.

Their arrest sparked controversy and complaints from state lawmakers that the judicial branch had hired Coalfire to commit crimes, placing law enforcement officers and others at risk. Mark Cady, then the Iowa Supreme Court’s chief justice, apologized to lawmakers for the incident, saying it had diminished “public trust and confidence in the court system.”

At the time, judicial branch officials said they had not intended to authorize Coalfire to physically break into buildings or enter facilities outside normal business hours.

But in their subsequent lawsuit against Dallas County and Sheriff Chad Leonard, Wynn and DeMercurio asserted that their contract specifically called for “physical attacks” on buildings, including lockpicking and physical “penetration” of the premises.

Coalfire’s contract, they alleged, called for them to test security at the Iowa Judicial Building, Dallas County Courthouse, Polk County Courthouse, the Des Moines Juvenile Justice Center and other buildings.

The two say that after they successfully breached security at the Iowa Judicial Building, they left a business card behind as planned, and were called the next morning by a judicial branch worker who congratulated them for having successfully entered the building undetected.

Within a few days of that incident, on Sept. 11, 2019, the two men went to the Dallas County Courthouse shortly after midnight and found one of the doors to the building unlocked. The two men allege they locked that door and then began the process of trying to break in undetected.

They allege that while in the building, they intentionally tripped an alarm. County deputies arrived on the scene and Wynn and DeMercurio presented them with what was euphemistically called a “get-out-of-jail-free letter” from the state court administrator explaining the work they were hired to conduct should they face any questioning by law enforcement.

According to the lawsuit, the deputies were satisfied with the letter and told Wynn and DeMercurio they could leave. Before they could, the two men allege, Sheriff Leonard arrived and ordered his deputies to arrest the two.

Wynn and DeMercurio were charged with burglary and possession of burglary tools, their property was seized, and they were jailed for roughly 20 hours before being released. The charges were later reduced to trespassing and then dropped altogether.

In July 2021, Wynn and DeMercurio sued the county and the sheriff in Dallas County District Court, alleging false arrest, abuse of process, defamation, intentional infliction of emotional distress and malicious prosecution.

In May 2022, the case was moved from Dallas County to Polk County, and in May 2023 it was moved to U.S. District Court for the Southern District of Iowa. The switch to federal court sought to take advantage of a federal statute that allows individuals to sue, for civil rights and constitutional violations, government employees whose actions are controlled by state law.

However, U.S. District Judge Stephen H. Locher ruled recently that the unique circumstances of the case mean that it cannot proceed in federal court on the constitutional-rights issue.

Locher said that while he was inclined to agree with Wynn and DeMercurio that the Iowa Judicial Branch has the authority to control access to courthouses throughout the state, the extent to which the Judicial Branch can exercise such control independently of other government officials — such as the county sheriff — is not clear. Locher found that the plaintiffs had failed to present a case that demonstrated the rights they alleged were violated were clearly established under the law.

“The situation here layers two unusual sets of facts on top of one another, the first involving the surreptitious break-in at midnight and the second involving a jurisdictional dispute over who has the right to authorize entry to a county courthouse,” Locher ruled. “Plaintiffs cannot, as a matter of law, prove they had a clearly established constitutional right not to be arrested in these circumstances.”

Locher remanded the remainder of the case – including the claims for false arrest, abuse of process, defamation and intentional infliction of emotional distress — to Iowa state court without addressing the merits of those claims.

The case is now set for trial in state court in May 2024, but the jurisdictional changes have resulted in delays and the two sides have yet to complete discovery and depositions in the matter. The county is pushing for a continuance, and this week, the plaintiffs informed the court they would not object to a delay that would result in a trial date between August and October 2024.

Over the past three years, Dallas County has argued in state court that the agreement between Coalfire and the Iowa Judicial Branch was made “without any input or knowledge of Dallas County, its sheriff, or any of its agents. In fact, the agreement specified local law enforcement or security personnel were not to be notified in advance of the testing to be performed.”

The county has also argued that the state court administrator had no “authority to grant permission to enter a county owned courthouse,” and because of that there is “no set of facts showing any unlawfulness” in the arrest of Wynn and DeMercurio.