United States v. Business of the Custer Battlefield Museum & Store
2011 U.S. App. LEXIS 19838
| 9th Cir. | 2011Background
- Kortlander operates the Custer Battlefield Museum; US investigated him in 2005 and 2008 for illegal sale of migratory bird parts and misrepresentation of provenance.
- Two search warrants were executed and the warrant affidavits were sealed during the investigation.
- The government declined prosecution; Kortlander sought access to warrant applications and affidavits in 2010, initially seeking unsealed, then full disclosure.
- District court unsealed for Kortlander's personal use and future filings but restricted dissemination, citing privacy and third-party concerns.
- Government consent to unsealing with restrictions; Kortlander appealed the restrictions as too limiting under the common law First Amendment rights.
- Ninth Circuit held post-termination warrant materials are subject to a qualified common law right of access and remanded for proper balancing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the common law right of access apply post-termination of an investigation? | Kortlander: post-termination warrants are public records. | U.S.: restrict access due to privacy and security concerns. | Yes; post-termination warrant materials have a qualified common law right of access. |
| Did the district court abuse its discretion by limiting access without a compelling reason? | Kortlander: no compelling, fact-based restriction; full access warranted. | Government: privacy and security justify restrictions. | Yes; district court abused discretion by failing to articulate compelling reasons and concrete facts. |
| Should the court decide the First Amendment right of access post-termination at this stage? | Kortlander: should be fully unrestricted under First Amendment. | Court should defer to common law and reserved the issue. | Reserved; not decided on the merits in this opinion. |
| What standard governs disclosure when applying the common law right of access? | Public interest favors open access to judicial records. | Access may be limited to balance privacy and integrity of proceedings. | A strong presumption in favor of access applies; any denial must be supported by a compelling reason with factual basis. |
Key Cases Cited
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (recognizes a common law right to inspect and copy judicial records)
- Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989) (distinguishes post-termination access and privacy considerations)
- Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) (affidavits and warrants are judicial records; openness serves public interest)
- Gunn v. United States, 855 F.2d 570 (8th Cir. 1988) (post-issuance access to warrant materials; openness and public oversight)
- In re EyeCare Physicians of Am., 100 F.3d 515 (9th Cir. 1995) (recognizes common law right to warrant-related materials and redaction options)
- In re Newsday, Inc., 895 F.2d 74 (2d Cir. 1990) (post-issuance access considerations for warrant materials)
- In re N.Y. Times Co., 585 F. Supp. 2d 83 (D.D.C. 2008) (post-investigation access context and public right)
- Fenstermaker, 530 A.2d 414 (Pa. 1987) (informational privacy and public access balance considerations)
- Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) (sets the strong presumption in favor of access and requires compelling reasons to seal)
- Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003) (balancing test for disclosure vs. secrecy in court records)
- Oregonian Pub'g Co. v. U.S. Dist. Court, 920 F.2d 1462 (9th Cir. 1990) (closure standards require compelling interest and narrow tailoring)