The U.S. Government recently filed a 71 page motion to dismiss Christopher Kortlander’s suit asking for $188 million in damages from the United States of America. The government’s motion to dismiss will likely be successful. However, Kortlander’s ordeal warrants attention.

Kortlander is an antiquities dealer and the owner of the Custer Battlefield Museum in Garryowen, Montana.

In 2003, Brian Cornell, a Special Agent with the Department of the Interior’s Bureau of Land Management (BLM), initiated an investigation into Christopher Kortlander’s business dealings. Christopher Kortlander claims that the investigation and subsequent raids and forfeitures were motivated by Kortlander’s dating of the ex-wife of a BLM agent who was later transferred off the investigation after Kortlander complained of harassment. Whether this is true isn’t easily verifiable but the investigation does seem petty, a violation of basic constitutional rights, scary, and a waste of federal resources.

In 2005, Cornell obtained a search warrant after a year plus investigation (involving multiple undercover buys) indicated that Kortlander might be selling property under false claims of historic value. Twenty-four armed federal agents executed a raid of Kortlander’s home and business. Several items were seized. Kortlander was detained and searched. No criminal charges were filed against Kortlander and no arrests were made.

In 2008, Cornell obtained a second search warrant and Kortlander’s museum was again searched. More items were seized. Kortlander wasn’t formally charged with any crime. However, Kortlander did engage in plea negotiations indicating that the government threatened Kortlander with something.

In August of 2009, the investigation was formally dropped.

The government retains some of Kortlander’s property under a theory that some of the forfeited property contains contraband eagle or migratory bird parts.

Kortlander has filed a number of lawsuits against the government since the last raid. Most of Kortlander’s suits have been dismissed.

However, Kortlander recently won an appeal in the 9th Circuit Court of Appeals for basic disclosure of facts pertaining to the case including search warrant applications and supporting affidavits. The US Attorney’s Office initially opposed disclosure citing a desire to protect references to “witness testimony and documentary evidence collected by the grand jury, as well as informant statements[,] and identif[y] undercover officers.”

The government initially claimed that Kortlander shouldn’t be able to find out why federal agents raided his home and business. What they were standing behind is that he wasn’t formally charged with a crime. It doesn’t matter that they violated his home and business, took stuff, and detained him.

The government dropped their opposition to sharing access to Kortlander and his attorney when they conceded,

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 longer

ha[d] concerns about disclosure of sensitive law enforcement

and/or witness information.”

Yet, they didn’t want the general public to have access. They argued that the information should be under court seal and what they did release, under the direction of a US District Court, was heavily redacted.

[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).

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 9th Circuit largely overturned the restrictions and remanded the case.

While there are some legitimate secrecy arguments related to the integrity of grand juries, an examination of the government’s informants raises suspicion.

One of the informants is James Brubaker. Brubaker provided testimony used in a showing of probable cause while he was negotiating a plea agreement with the government. Authorities requested a 24 month sentence citing his cooperation. Brubaker was sentenced to 30 months in jail and a little under $25,000 in restitution (of the 10 years and $250,000 in fines available) after he was “charged on March 27 (2008) with interstate transportation of stolen goods in federal court. The charges relate to the items stolen from WWU, but authorities, executing a search warrant on Brubaker’s home last December, found 1,000 books taken from at least 100 libraries across the country, along with 20,000 single pages torn from books. Brubaker was apparently selling them on eBay under the name “montanasilver”; according to records found during the search, he completed 9,000 eBay transactions in 2007, grossing nearly $500,000.”

John Hellson, a convicted antiquities thief and companion of James Brubaker, is mentioned in affidavits as travelling with Brubaker while Brubaker was stealing rare books throughout North America. Hellson doesn’t appear to have been charged in connection with Brubaker but he is mentioned in the discussion of whether probable cause was warranted.

Most importantly, even if Cornell deliberately or recklessly made false

statements in the affidavit, the warrant is still valid if it provides probable cause

without the allegedly false material. Franks, 438 U.S. at 171-72. Accordingly,

even if the Court assumes Cornell deliberately or recklessly averred that

Kortlander tried to sell eagle artifacts through or to John Hellson or Allen Wolfleg,

paragraph 3 still provides probable case that Kortlander purchased eagle parts and

feathers from James Brubaker and that Kortlander, through the Museum, accepted

artifacts containing migratory bird parts in exchange for fraudulent tax write offs.

Jason Pitsch claims to be another of the informants.  Pitsch has a rap sheet including possession of child pornography dating back to 1997. He has largely been under the correctional thumb of authorities for the last 15 years. He is currently in jail on charges of child pornography. Additionally, the Associated Press reported that Kortlander “provided a 2004 statement in which Pitsch acknowledged making fraudulent claims of his own about another artifact, a pair of boots that he sold to the museum. Kortlander added that he had once turned in Pitsch to authorities after seeing him view child pornography, possibly motivating Pitsch to now seek revenge.”

Robert Nightengale is also mentioned as a purported federal informant. He has credibility issues too. Court documents raise accusations that Nightengale stalked Kortlander. In 2003, Kortlander was granted a restraining order for protection from Nightengale. Nightengale’s girlfriend, Janice M. Smith, then filed a pro se civil rights claim seeking $50,000. The claim was dismissed.

Kortlander claims to have spent hundreds of thousands of dollars in legal fees. He also claims that the raids and litigation derailed a planned $30 million dollar museum. He’s spent 6.5 years fighting for disclosure, accountability, and recompense. Our government has, presumably, spent much more.  That’s fine if we’re speaking about government agents witnessing, or being alerted to, a non-consensual crime and trying to bring the perpetrators to justice.

This is something different.

This a 6+ year undercover federal regulatory investigation involving  two armed raids; allegedly prefaced on jealousy; multiple controlled buys and sells of items in attempts to catch Kortlander making false provenience claims; “microscopic data dot” markers; detention; seizures; allegations of threats and coercion; and the government’s use of dubious witnesses to perpetuate a fishing expedition; with no arrests.

And, the government doesn’t want you to know about it. It also wants immunity from suit (for a lot of ridiculous, if legally viable, reasons).

Thankfully, the 9th Circuit pushed back on disclosure but we should go farther.

We should consider differentiating between federal regulatory code enforcement agents and the rest of law enforcement. At a minimum, we should have a conversation before we furnish the same access to easy qualified immunity (and diminished exclusionary rule protections) to the ever growing list of federal agencies that have decided that they should have their own law enforcement. We should also keep in mind that more and more of these agencies are able to generate their own revenues due to civil asset forfeiture statutes while effectively being removed from civilian appropriation oversight due to the size and complexity of the federal government.