United States v. Business of the Custer Battlefield Museum & Store

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

THE BUSINESS OF THE CUSTER No. 10-30222

BATTLEFIELD MUSEUM AND STORE D.C. No.

LOCATED AT INTERSTATE 90, EXIT  1:05-mj-00022-

514, SOUTH OF BILLINGS, MONTANA, RFC-1

Defendant, OPINION

and

CHRISTOPHER KORTLANDER,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, Chief District Judge, Presiding

Argued and Submitted

June 8, 2011—Portland, Oregon

Filed September 30, 2011

Before: Raymond C. Fisher, Ronald M. Gould and

Richard A. Paez, Circuit Judges.

Opinion by Judge Fisher

18621

UNITED STATES v. KORTLANDER 18623

COUNSEL

Penelope S. Strong, Penelope S. Strong Law Office, Billings,

Montana, for the appellant.

Michael W. Cotter, U.S. Attorney, and Leif M. Johnson

(argued), Assistant U.S. Attorney, Billings, Montana, for the

appellee.

18624 UNITED STATES v. KORTLANDER

OPINION

FISHER, Circuit Judge:

We decide whether the public has a common law or First

Amendment right of access to materials filed in support of

search warrant applications after an investigation has been ter-

minated. We hold that a qualified common law right of access

applies. We decline to reach the constitutional question.

BACKGROUND

Christopher Kortlander owns and operates the Custer Bat-

tlefield Museum in Garryowen, Montana. Beginning in 2005,

the United States investigated Kortlander for unlawfully

attempting to sell migratory bird parts and for fraudulently

misrepresenting the provenance of historical artifacts for sale.

During that investigation, two search warrants were executed

(in 2005 and 2008), and the court sealed the affidavits sup-

porting the warrant applications. The government ultimately

declined prosecution of any criminal charges.

In 2010, Kortlander asked the district court for a copy of

the search warrant applications and supporting affidavits. He

initially sought “a personal copy of the entire file, while leav-

ing the file sealed to the public.” Later, however, he asked

that the warrant applications be “ordered unsealed” and “fully

disclosed.” Citing cases discussing the public’s qualified First

Amendment right of access to judicial proceedings, he

asserted that “search warrant papers are presumptively public

judicial records,” adding that “[u]nfettered disclosure is

entirely appropriate and fitting in this case and should be

effectuated forthwith.”

The United States Attorney’s Office initially opposed Kort-

lander’s request in its entirety, citing the need to protect wit-

ness, informant and grand jury secrecy. The government’s

objections said that portions of the search warrant affidavits

UNITED STATES v. KORTLANDER 18625

“refer to witness testimony and documentary evidence col-

lected by the grand jury, as well as informant statements[,]

and identif[y] undercover officers.”

Later, however, the government dropped its blanket objec-

tion to giving Kortlander access to the records, acknowledg-

ing that Kortlander and his attorney had already learned the

“details of investigation in the course of negotiation” in the

case, including “informant and undercover officer identities”

and “grand jury material.” “The government therefore no lon-

ger ha[d] concerns about disclosure of sensitive law enforce-

ment and/or witness information.”

Nonetheless, the government urged the court to “limit dis-

semination 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 col-

lected 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).

Consequently, should the Court unseal the warrant

applications in this matter, the government requests

that any order limit dissemination of the material to

Kortlander’s personal review and/or for inclusion in

any future court filings.

The district court granted Kortlander’s request for access to

the warrant materials, but limited Kortlander’s access in

accordance with the government’s suggestions.1 The court

1

We treat the restrictions the district court imposed on Kortlander’s use

and dissemination of the materials as restrictions on his “access” to these

18626 UNITED STATES v. KORTLANDER

noted that “[t]he government does not object to the unsealing

of the records for Kortlander’s personal review and/or inclu-

sion in future court filings, but does have concerns about the

information being posted on websites.” The court accordingly

directed the government “to provide a copy to Kortlander’s

counsel for dissemination to Kortlander,” but advised Kort-

lander “that the information is to be used only for personal

review and/or inclusion in any future court filings. Kortlander

is ordered not to post the warrant applications on any web-

sites.” The court did not make any findings — beyond citing

unspecified “concerns” about Internet postings — articulating

a justification for the restrictions imposed. Kortlander timely

appealed.2

DISCUSSION

[1] The law recognizes two qualified rights of access to

judicial proceedings and records, a common law right “to

inspect and copy public records and documents, including

judicial records and documents,” Nixon v. Warner Commc’ns,

Inc., 435 U.S. 589, 597 (1978) (footnote omitted), and “a First

Amendment right of access to criminal proceedings” and doc-

uments therein, Press-Enter. Co. v. Superior Court, 478 U.S.

1, 8 (1986). Kortlander contends that he has a right to unfet-

tered access to the search warrant materials under both stan-

dards. We address the common law question first.

documents as that term is used in connection with the common law and

First Amendment principles governing access to judicial proceedings and

documents.

2

We reject the government’s argument that Kortlander lacks standing to

appeal because he has not asserted any concrete plans to post the warrant

materials on the Internet, a fact Kortlander in any event disputes. Kort-

lander seeks a single remedy: access to the warrant materials. He indispu-

tably has standing to seek that remedy, and we will not require him to

establish standing for each component of that access that may be encom-

passed within the general remedy he seeks.

UNITED STATES v. KORTLANDER 18627

I. Common Law Right of Access

[2] The first step in any inquiry under the common law

right of access is whether this right applies at all to the type

of documents at issue. See Kamakana v. City & Cnty. of

Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (“A narrow

range of documents is not subject to the right of public access

at all because the records have ‘traditionally been kept secret

for important policy reasons.’ ” (quoting Times Mirror Co. v.

United States, 873 F.2d 1210, 1219 (9th Cir. 1989))). “Our

case law has identified two categories of documents” that are

not covered by the common law right of access: “grand jury

transcripts and warrant materials in the midst of a pre-

indictment investigation.” Id. (citing Times Mirror, 873 F.2d

at 1219). We review this threshold question de novo. See

Times Mirror, 873 F.2d at 1212.

[3] Whether the common law right of access applies to

warrant materials after an investigation has ended is a ques-

tion of first impression in this circuit. We have held that the

common law right of access does not apply to warrant materi-

als “during the pre-indictment stage of an ongoing criminal

investigation.” Id. at 1221. But we expressly reserved whether

the common law right of access applies to warrant materials

after “an investigation has been terminated.” Id. We answer

that question today, and hold that, as the government con-

cedes, the common law right of access applies under these cir-

cumstances.3 In doing so, we join a number of courts that

have reached the same conclusion. See, e.g., In re EyeCare

Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996); In re

Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990); Baltimore Sun

Co. v. Goetz, 886 F.2d 60, 62 (4th Cir. 1989); United States

v. Wells Fargo Bank Account Number 7986104185, 643 F.

3

Times Mirror also reserved whether the public has a common law right

of access to warrant materials when “an investigation is still ongoing, but

an indictment has been returned.” 873 F.2d at 1221. We have no occasion

to address that question here.

18628 UNITED STATES v. KORTLANDER

Supp. 2d 577, 583-84 (S.D.N.Y. 2009); In re N.Y. Times Co.,

585 F. Supp. 2d 83, 92 (D.D.C. 2008); Commonwealth v.

Fenstermaker, 530 A.2d 414, 417-19 (Pa. 1987); see also In

re Search Warrant for Secretarial Area Outside Office of

Gunn, 855 F.2d 569, 575-76 (8th Cir. 1988) (Bowman, J., con-

curring).4

[4] We agree with these courts that warrant materials are

“judicial records and documents.” Nixon, 435 U.S. at 597

(recognizing a common law right “to inspect and copy public

records and documents, including judicial records and docu-

ments”). In Baltimore Sun, the Fourth Circuit offered persua-

sive reasons for treating search warrant affidavits as judicial

records:

The requirement that warrants issue only upon oath

or affirmation showing probable cause is embodied

in the fourth amendment. A judicial officer must

review the affidavit to determine whether the war-

rant should issue. This initial review is subject to fur-

ther review by district and appellate courts upon

motion to suppress the objects seized in the search.

4

Though generally invoked by news organizations, the common law

right of access to judicial records and documents “is a general right held

by all persons.” In re EyeCare Physicians, 100 F.3d at 517. It has been

invoked, for example, by those with “a proprietary interest” in a docu-

ment, by those who need a document “as evidence in a lawsuit,” by citi-

zens who “desire to keep a watchful eye on the workings of public

agencies” and by news organizations seeking “to publish information con-

cerning the operation of government.” Nixon, 435 U.S. at 597-98.

Courts have applied the common law right of access to a variety of

warrant-related materials. See In re EyeCare Physicians, 100 F.3d at 515

(search warrant application and affidavit); In re Newsday, 895 F.2d at 75

(same); Baltimore Sun, 886 F.2d at 62 (search warrant affidavit); Wells

Fargo, 643 F. Supp. 2d at 579 (affidavits in support of warrants of seizure

in rem); In re N.Y. Times Co., 585 F. Supp. 2d at 86 (search warrant appli-

cations and affidavits); Fenstermaker, 530 A.2d at 415-16 (affidavits of

probable cause in support of arrest warrants); see also Gunn, 855 F.2d at

570 (search warrant affidavits and related materials).

UNITED STATES v. KORTLANDER 18629

Federal Rule of Criminal Procedure 41(g) directs the

judicial officer to file the warrant and all papers in

connection with it with the clerk of the district court.

The papers are then available for use in a subsequent

criminal trial if its sufficiency is questioned. We

therefore conclude that affidavits for search warrants

are judicial records.

886 F.2d at 63-64 (footnote omitted). “Affidavits in support

of seizure or search warrants are central to a court’s probable

cause determination.” Wells Fargo, 643 F. Supp. 2d at 583.

They therefore “clearly fall within the definition of ‘judicial

documents.’ ” Id.; see also Fenstermaker, 530 A.2d at 418

(“[D]ocuments upon which a magistrate bases a decision to

issue an arrest warrant are clearly judicial in character.”).

We also agree with these courts that post-investigation war-

rant materials fall outside the “narrow range of documents

[that are] not subject to the right of public access at all

because the[y] have ‘traditionally been kept secret for impor-

tant policy reasons.’ ” Kamakana, 447 F.3d at 1178 (quoting

Times Mirror, 873 F.2d at 1219). As we acknowledged in

Times Mirror, 873 F.2d at 1213-14, 1218, warrant materials

have not historically been accessible to the public during the

early stages of criminal proceedings. “Warrant application

proceedings are highly secret in nature and have historically

been closed to the press and public.” Wells Fargo, 643 F.

Supp. 2d at 583; see also Baltimore Sun, 886 F.2d at 64

(“[P]roceedings for search warrants are not open to the pub-

lic.”); Gunn, 855 F.2d at 573 (“[H]istorically the process of

issuing search warrants involves an ex parte application by

the government and in camera consideration by the judge or

magistrate. Moreover, the very objective of the search warrant

process, the seizure of evidence of crime, would be frustrated

if conducted openly.”).

[5] Post-investigation, however, warrant materials “have

historically been available to the public.” In re N.Y. Times

18630 UNITED STATES v. KORTLANDER

Co., 585 F. Supp. 2d at 88. “Search warrant applications . . .

generally are unsealed at later stages of criminal proceedings,

such as upon the return of the execution of the warrant or in

connection with post-indictment discovery.” Wells Fargo, 643

F. Supp. 2d at 581. “[A]lthough the process of issuing search

warrants has traditionally not been conducted in an open fash-

ion, search warrant applications and receipts are routinely

filed with the clerk of court without seal.” Gunn, 855 F.2d at

573 (emphasis added). In the post-investigation context, war-

rant materials have generally been open to the public.

[6] This tradition of openness “serves as a check on the

judiciary because the public can ensure that judges are not

merely serving as a rubber stamp for the police.” In re N.Y.

Times Co., 585 F. Supp. 2d at 90. Warrant materials are also

“often used to adjudicate important constitutional rights such

as the Fourth Amendment protection against unreasonable

searches and seizures.” Id. As the Eighth Circuit has

observed, “public access to documents filed in support of

search warrants is important to the public’s understanding of

the function and operation of the judicial process and the

criminal justice system and may operate as a curb on prosecu-

torial or judicial misconduct.” Gunn, 855 F.3d at 573; see also

Wells Fargo, 643 F. Supp. 2d at 583 (stating that access to

warrant materials “promotes the legitimate interests of the

public and the press in ‘keep[ing] a watchful eye on the work-

ings of public agencies’ ” (alteration in original) (quoting

United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995))).

[7] For these reasons, we hold that the public has a quali-

fied common law right of access to warrant materials after an

investigation has been terminated. In doing so, we decline to

extend Times Mirror to post-investigation access. In Times

Mirror, we were concerned primarily with the impact disclo-

sure would have on an ongoing criminal investigation. We

said:

First, and most obviously, if the warrant proceeding

itself were open to the public, there would be the

UNITED STATES v. KORTLANDER 18631

obvious risk that the subject of the search warrant

would learn of its existence and destroy evidence of

criminal activity before the warrant could be exe-

cuted. Additionally, if the proceeding remained

closed but the supporting affidavits were made pub-

lic when the investigation was still ongoing, persons

identified as being under suspicion of criminal activ-

ity might destroy evidence, coordinate their stories

before testifying, or even flee the jurisdiction.

Times Mirror, 873 F.2d at 1215. These are important con-

cerns, but they are not as relevant once an investigation has

been terminated. The other concerns we identified in Times

Mirror, particularly “the privacy interests of the individuals

identified in the warrants and supporting affidavits,” id. at

1216, are also important, but, in a particular case involving

materials subject to the common law right of access, they may

be redressed through a court’s discretion either to release

redacted versions of the documents or, if necessary, to deny

access altogether, as we discuss below.

Having held that the right of access applies to post-

investigation warrant materials, we must next decide whether

the district court properly granted Kortlander only limited

access to the warrant materials in this case.

[8] When the common law right of access applies to the

type of document at issue in a particular case, “a ‘strong pre-

sumption in favor of access’ is the starting point.” Kamakana,

447 F.3d at 1178 (quoting Foltz v. State Farm Mut. Auto. Ins.

Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “A party seeking

to seal a judicial record then bears the burden of overcoming

this strong presumption by . . . ‘articulat[ing] compelling rea-

sons’ . . . that outweigh the general history of access and the

public policies favoring disclosure.” Id. at 1178-79 (quoting

Foltz, 331 F.3d at 1135). “In turn, the court must ‘conscien-

tiously balance[ ] the competing interests’ of the public and

the party who seeks to keep certain judicial records secret.”

18632 UNITED STATES v. KORTLANDER

Id. at 1179 (alteration in original) (quoting Foltz, 331 F.3d at

1135). “After considering these interests, if the court decides

to seal certain judicial records, it must ‘base its decision on a

compelling reason and articulate the factual basis for its rul-

ing, without relying on hypothesis or conjecture.’ ” Id. (quot-

ing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.

1995)). “Where the district court conscientiously undertakes

this balancing test, basing its decision on compelling reasons

and specific factual findings, its determination will be

reviewed only for abuse of discretion.” San Jose Mercury

News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir.

1999).5

5

With respect to warrant materials, courts have recognized several con-

cerns that may call for redaction of the materials or withholding of disclo-

sure outright. These concerns include the need to protect an ongoing

investigation, see In re EyeCare Physicians, 100 F.3d at 519; Times Mir-

ror, 873 F.2d at 1215; Gunn, 855 F.2d at 574; Wells Fargo, 643 F. Supp.

2d at 585-86; In re N.Y. Times Co., 585 F. Supp. 2d at 93; Fenstermaker,

530 A.2d at 420, the need to protect the identities and safety of confiden-

tial informants, see In re EyeCare Physicians, 100 F.3d at 518 n.5; In re

N.Y. Times Co., 585 F. Supp. 2d at 91; Fenstermaker, 530 A.2d at 420,

privacy interests, see In re McClatchy Newspapers, Inc., 288 F.3d 369,

373-74 (9th Cir. 2002); In re Newsday, 895 F.2d at 79-80; Times Mirror,

873 F.2d at 1216; In re N.Y. Times Co., 585 F. Supp. 2d at 91, the need

to safeguard the Sixth Amendment fair trial rights of the accused, see Fen-

stermaker, 530 A.2d at 420, and the need to protect the secrecy of grand

jury proceedings, see In re EyeCare Physicians, 100 F.3d at 518-19. In

many cases, courts can accommodate these concerns by redacting sensi-

tive information rather than refusing to unseal the materials entirely. See,

e.g., In re Newsday, 895 F.2d at 80 (redacting documents to protect the

privacy interests of innocent third parties); Baltimore Sun, 886 F.2d at 66

(indicating that a court should consider redaction before denying access

altogether); Wells Fargo, 643 F. Supp. 2d at 585-86 (redacting materials

to protect the government’s ongoing investigation); In re N.Y. Times Co.,

585 F. Supp. 2d at 86 & n.1, 91 (redacting information to protect confi-

dential informants); cf. In re EyeCare Physicians, 100 F.3d at 516, 519

(considering redaction as an alternative to denying access altogether);

Gunn, 855 F.2d at 574 (discussing redaction in connection with the First

Amendment right of access).

UNITED STATES v. KORTLANDER 18633

[9] The restrictions the district court imposed here do not

conform to the standards we articulated in Kamakana.

Although the court ruled that Kortlander may not “post the

warrant applications on any websites,” it did not articulate a

“compelling reason” for these limitations or a “factual basis

for its ruling.” Kamakana, 447 F.3d at 1179. The restrictions

therefore cannot be sustained.

Even when we look past the district court’s order to the

underlying government briefs upon which the district court

relied, we do not find a compelling reason or a factual basis

for the restrictions. The government’s district court brief said

only that “concerns have been raised that information col-

lected by Kortlander may be posted on web sites,” and cited

the general principle that individuals identified in warrants

have privacy interests that may justify denying access. The

government’s brief did not explain what concerns had been

raised, whether they were concrete rather than conjectural or

how they constituted a compelling reason for restricting Kort-

lander’s access to the warrant materials.

[10] Under these circumstances, we hold that the district

court abused its discretion by limiting Kortlander’s access to

the warrant materials. We therefore vacate the court’s order

and remand for the district court to reconsider the application

of the common law right of access in this case, applying the

correct legal standard. In applying this standard, the court

should balance the public’s interest in disclosure against any

countervailing concerns that may apply. But the court may not

restrict access to the documents without articulating both a

compelling reason and a factual basis for its ruling.

II. First Amendment Right of Access

Kortlander argues in the alternative that he is entitled to

unrestricted access to the warrant materials under the First

Amendment right of access to judicial proceedings. Whether

this right of access applies to warrant materials after an inves-

18634 UNITED STATES v. KORTLANDER

tigation has ended is also a question of first impression in this

circuit. In Times Mirror, we held that the “public has no qual-

ified First Amendment right of access to warrant materials

during the pre-indictment stage of an ongoing criminal inves-

tigation,” but we expressly reserved whether the public has a

constitutional right of access after “an investigation has been

terminated.” Times Mirror, 873 F.2d at 1221.6

We decline to decide the question reserved in Times Mirror

at this time. First, it has not been addressed by the district

court, and we ordinarily prefer the district court to address

issues in the first instance. Second, the district court may be

able to resolve this case on remand by applying the common

law right of access alone, without the need to address the First

Amendment question. We prefer to “avoid reaching constitu-

tional questions in advance of the necessity of deciding

them.” Camreta v. Greene, 131 S. Ct. 2020, 2031 (2011)

(quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485

U.S. 439, 445 (1988)) (internal quotation marks omitted). The

First Amendment question is therefore reserved.

6

Although there are a number of court decisions addressing whether the

First Amendment right of access applies to warrant materials during or

after an investigation, they have not always reached identical conclusions.

See Gunn, 855 F.2d at 572-75 (holding that the public has a qualified First

Amendment right of access to warrant materials, even while an investiga-

tion is ongoing); In re Newsday, 895 F.2d at 75 (declining to decide

“whether . . . the press has a constitutional right of access to documents

contained in search warrant applications”); Baltimore Sun, 886 F.2d at 62

(holding that the public does not have “a qualified [First Amendment]

right of access to inspect and copy affidavits supporting search warrants

in the interval between execution of the warrants and indictment”); Wells

Fargo, 643 F. Supp. 2d at 583 (holding that a media organization had no

First Amendment right of access to seizure warrant information while an

investigation was ongoing); In re N.Y. Times Co., 585 F. Supp. 2d at 90

(holding that the public has a qualified First Amendment right of access

to warrant materials after an investigation has been completed).

UNITED STATES v. KORTLANDER 18635

CONCLUSION

We hold that the public has a qualified common law right

of access to warrant materials after an investigation has been

terminated. The district court properly recognized that right

here, but the court erred by granting Kortlander only

restricted access to the warrant materials without articulating

a compelling reason for its ruling or making specific factual

findings. The district court’s order is therefore vacated, and

the matter is remanded to the district court to reapply the

common law standard to Kortlander’s request.

[11] We decline to decide whether the public has a quali-

fied 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 standard.7

7

The First Amendment is generally understood to provide a stronger

right of access than the common law. See, e.g., Lugosch v. Pyramid Co.

of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006); Rushford v. New Yorker

Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). We have held that

“criminal proceedings and documents may be closed to the public without

violating the first amendment only if three substantive requirements are

satisfied: (1) closure serves a compelling interest; (2) there is a substantial

probability that, in the absence of closure, this compelling interest would

be harmed; and (3) there are no alternatives to closure that would ade-

quately protect the compelling interest.” Oregonian Publ’g Co. v. U.S.

Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990); see also Times Mirror,

873 F.2d at 1211 n.1 (“Even when the public enjoys a First Amendment

right of access to a particular proceeding, the public still can be denied

access if closure ‘is necessitated by a compelling governmental interest,

and is narrowly tailored to serve that interest.’ ” (quoting Press-Enter. Co.

v. Superior Court, 464 U.S. 501, 510 (1984))).

18636 UNITED STATES v. KORTLANDER

Costs of appeal are awarded to the appellant.

VACATED and REMANDED.