Ninth Circuit Sends Custer Battlefield Museum Case Back to Lower Court - Lawsuit Seeks Unfettered Public Access to Search Warrant Affidavits

Wednesday, October 19, 2011

With no charges filed in a case targeting the Custer Battlefield Museum in Montana, the Ninth Circuit Court of Appeals has ruled that sealed search warrants and affidavits may be accessible to the public. Law enforcement officers from the Bureau of Land Management and other agencies searched the museum in 2005 and 2008. Court records reveal that the investigation focused on attempts to sell migratory bird parts as well as misrepresentation of provenance surrounding the sale of cultural artifacts.

Christopher Kortlander, owner and operator of the museum, has complained in lawsuits and public statements that the law enforcement raids were excessive and that he was unfairly targeted. As a result, he made seven Freedom of Information Act requests for investigative information regarding himself, Historical Rarities, Inc., Elizabeth Custer Museum and Library, Inc., Custer Battlefield Museum, and local stores. In 2010, Kortlander requested copies of search warrant affidavits. These affidavits normally contain the details of a police investigation.

The US Attorney’s Office in Montana eventually assented to the release of the material, but prosecutors urged the court, as reported in the Ninth Circuit opinion, to “’limit dissemination of the material to Kortlander’s personal review and/or for inclusion in any future court filings,” citing privacy interests of third parties.’ The government said: [C]oncerns have been raised that information collected by Kortlander may be posted on web sites. The Ninth Circuit has explained that ‘the privacy interests of the individuals identified in the warrants and supporting affidavits’ supports the conclusion that warrant-related material not be made available for public dissemination. Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).’” (quoting the government’s legal brief).

The lower court originally sided with the government. The federal district court authorized the release of the documents to Kortlander in particular, but restricted them from further public view. The court of appeals, however, overruled the district court and sent the case back to the district court, ruling: “We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. . . . [T]he matter is remanded to the district court to reapply the common law standard to Kortlander’s request. We decline to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation has been terminated. In the event that the court denies Kortlander unrestricted access to the warrant materials under the common law, the court should decide in the first instance whether the First Amendment right applies to post-investigation warrant materials and, if so, whether Kortlander is entitled to unrestricted access under the First Amendment . . .”

The full opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/30/10-30222.pdf.


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