Ninth Circuit Court of Appeals Recognizes Public Right to Review Why a Search Warrant Was Issued

Oct 03, 2011, 13:43 ET from Custer Battlefield Museum

GARRYOWEN, Mont., Oct. 3, 2011 /PRNewswire-USNewswire/ -- On Friday, an important court decision confirmed the right of the people to see and review material secretly filed in support of search warrant applications, after an investigation has been terminated.  The Ninth Circuit Court of Appeals ruled that District Court Judge Richard Cebull had erred in restricting the appellant's – and thus the public's – access to the documents filed with the court when the government obtained search warrants against the Custer Battlefield Museum in 2005 and again in 2008.  

In 2005, Special Agents of the Bureau of Land Management, supported by nearly two dozen armed federal agents, raided the Custer Battlefield Museum in Garryowen, Montana.  Thousands of items, including many historical artifacts were seized.  In 2008, the BLM obtained a second search warrant and seized a dozen items from the Custer Battlefield Museum, where they had been publicly displayed for the past decade.  

No charges were ever filed against Christopher Kortlander, and many of the items seized continue to be held by the federal government.  However, the federal government sought to keep sealed the information used to invade the lives and businesses at Garryowen.  Christopher Kortlander, owner and principal operator of most of the businesses, sought to have the documents used to obtain the search warrants unsealed, but his request was repeatedly opposed by the government, which would have allowed public access to the documents.  

Federal District Court Judge Cebull allowed Kortlander to see the documents but effectively said that he could not show them to anyone by posting them on the Internet.  On appeal, the 9th Circuit said the judge was wrong; the public does have a right in common law of access to materials filed in support of search warrant applications after an investigation has been terminated.  "[Judge Cebull] erred by granting Kortlander only restricted access to the warrant materials without articulating a compelling reason for its ruling or making specific factual findings."

In declining to decide the constitutional issues raised in the case, the 9th Circuit noted that the First Amendment is generally understood to provide a stronger right of access than the common law right.  The 9th Circuit Court would consider that issue if Judge Cebull chose to consider it on remand.

The effect is to pull back, even if just a little, the veil of secrecy that the government uses to mask its frequently wrong and even unlawful activities from the public.  The government could not support the assertions made in its applications for the two search warrants.  Kortlander says that is because the applications for search warrants contain factual errors and misrepresentations that the public should know about.  

"Our federal government is out of control, and only by shining the bright light of public scrutiny on their activities will the freedom of the people in our country be assured," said Kortlander.  "Our freedoms are under attack, not only from those who would destroy us from abroad, but by those who threaten our freedom from within, wearing the cloak of government authority to control, regulate, and to destroy our lives."

To view ruling, see

SOURCE Custer Battlefield Museum