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

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 terminated. 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 Battlefield 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 supporting 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 leaving 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…