F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A R E D A R M S T R O N G , Plaintiff-Appellee

,

v

.

G E R A R D A S S E L I

N ; K E V I N V A N D E G R I F F ; M A R

K T H O M A S ; L E E R O H W E R ; W A L T E R G I L M O U R ; D A V I D P A R K E R ; M U N I C I P A L I T Y O F A N C H O R A G E , Defendants-Appellants

. N o. 10-35777

D.C. No. 3:07-cv-00243- TMB

OPI NI ON

A ppeal from the United States District Court

for the District of Alaska T imothy M. B urg ess, District J udg e, Presiding

Arg ued and Submitted J uly 25, 2011 Submission W ithdrawn Aug ust 3, 2011 Resubmitted October 2, 2013 * A nchorag e, Alaska

F iled November 1, 2013

* We w ith d rew th is case f ro m s u b m issio n p en d in g th e Su

p rem e Co u rt’ s d ecisio n in Messersch mid t v. Millen d er , 1 3 2 S. Ct. 1 2 3 5 (2 0 1 2 ). A f ter Messersch mid t cam e d ow n , w e o b t ain ed su

p p lem en tal b rief

s ad d ressin g its ef f ect o n th i s case.A R M S T R O N G V

. A S S E L I

N 2

B efore: Andrew J . Kleinfeld, Sidney R. Thomas, * * and Consuelo M. Callahan, Circuit J udg es.

Opinion by

J udg e Kleinfeld

SUMMARY * * *

Civil Rights

The pa n el reversed the district court’s order deny ing qualified immunity t o p olice officers and remanded for dismissal o f an a ction broug ht under 42 U.S.C. § 1 983 by a pro se plaintiff who alleg ed that his F ourth Amendment rig hts

were violated when his home, workplace, and c a r we r e searched a

nd he w as arrested for disseminating i n d e c ent materials to minors.

P laintiff’s claim ag ainst the defendants was that a reasonable officer would know that the warrant applications failed to establish p robable cause. The panel held that g iven the circumstances o f t h is c ase, the police officers, prosecutors, and judicial off i cials were n o t plainly incompetent in concluding that there wa s a f a ir probability that the searches w o u l d turn up evidence of stalking a nd

** J u d g e B etty

B . Fletch er w as a m em

b er of th e p an el b u t p assed aw ay af ter o ral arg u m en t. J u d g e T h om as w as d raw n to rep lace h er. He h as read th e b rief s, rev iew ed th e reco rd

, an d listen ed to th e tap e o f o ral arg u m en t h eld o n J u ly 2 5 , 2 0 1 1

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A R M S T R O N G V

. A S S E L I

N 3

dissemination of indecent material to minors. The panel noted that police officers subjected every s t ep of their invasions of plaintiff’s privacy to e valuat i o n both b y prosecutors and by n eutral judicial officials before they acted. The panel held that such prior review of proposed sea r c hes and arrests supported qualified immunity

, shielding p o lice officers from liability under the line of c ases r e affirmed a nd broadened most recently by Messerschmidt v. Millender

, 132 S. Ct. 1235 (2012).

COUNSEL

J oy ce Weaver J ohnso n (arg ued), Assistant Municipal At t o r ney ; Dennis A. W heeler, Municipal Attorney
, Municipal i t y of Anchorag e, Anchorag e, Alaska, for Defendants-Appellants.

J ared Armstrong (a r g ued), p ro se, Anchorag e, Alaska, Plaintiff-Appellee.

OP INION

KL EI N F EL D , Senior Circuit J udg e:

Armstrong sued several police office rs a nd the munic i pality that employ ed them. 1 His forty -three pag e second amended complaint is pro se and hard to understand,

1 A rm stro n g h as n o t ap p ealed th e d istrict co u rt’s o r d er d ism i ssin g h is

su it ag ain st th e of

f icers in t h eir o f

f icial cap acity an d t

h e m u n icip ality of A n ch o rag e. T h e six o f

f icers ap p eal th e d istrict co u rt’ s o rd er d en y in g th em q u alif ied im m u n ity . W e ad d ress o n ly

th at asp ect o f

th is case.A R M S T R O N G V

. A S S E L I

N 4

but the core o f it is a § 1983 claim for violation of his F ourth Amendment ri ghts in their searches and seiz ures and his
arrest pursuant to warrants. T h e police officers moved t o di s m iss based on qualified immunity

, their motion was denied in district court, and they have filed this interlocutory appeal pursuant to Mitchell v. Forsyth

. 2 W e reverse.

BACK G ROUND

The initial proceeding s took place in s tate court. The parents of a fourteen-y

ear-old boy

, L .T., came to the police
comp l aining that Armstrong
, a man in his late thirties, was befriending and g iving pornog r aphy to their son. The parents told Officer Asselin that Armstrong met their son online a nd had c ommunicated with h im throug h email, instant
messag ing

, and over the phone. The b o y ’s mother had seen that A rmstrong was talking to her son o ver instant messag ing about “drinking tequila a

nd a bout g iving a ‘blow job ’ to his teacher.” The parents also told A sselin t h a t , after coming home from a movie, L

. T

. w a s carry ing a copy of Satan B u r ger —the book they thoug ht was pornog raphic. T h e parents g ave the book to Asselin, who, af t e r l ooking over portions of it, thoug ht the b o o k mig ht qualify as “indecent” under an Anchorag e municipal code section p roh i b i ting distribution of indecent material to minors. 3

2 Mitch ell v. Fo rsyth , 4 7 2 U.S. 5 1 1 , 5 2 6

– 2 8 (1 9 8 5 ).

3 T h e o rd i n an ce d ef

i n es th e f o llo w in g as “ in d ecen t m aterial”:

[A ] p ictu r e , p h o to g rap h

, d raw in g , scu lp tu re, m o tio n p ictu re f ilm

, o r sim i lar v isu al rep resen tatio n o r i m ag e of

a p erso n o r p o rtio n o f th e h u m an b o d y w

h i ch d ep icts

sex u al ex citem en t , sex u al co n d u ct, o r sad o

- m aso ch istic ab u s e w h ich is h arm f

u l to m in ors; a b o o k p am p h let,A R M S T R O N G V

. A S S E L I

N 5

The cover of Satan Burger has a picture of naked buttocks squatting over a dinner plate. The book describes itself as a “collag e of absurd phi l o s o p hies and dark surrealism

. . . [ f] e aturing a city overrun with p eoples from other dimensions

. . . a man w hose flesh is dea d

, b u t h is body p arts a re alive and running amok, an o verweig ht messiah, the persona l life of the Grim Reaper, lots of classy sex and violence, a nd a f a st food restaurant owned b y the d evil himself

. ” The pag e s included in the record and provided to the mag istrate judg e s

are biz arre. As best w e can t e l l

, the part claimed to be

m ag azin e, p rin t ed m atter, h ow ev er p ro d u ced

, o r so u n d

reco rd in g w

h ich co n t ain s an

y m atter en

u m erated in th is d ef in i tio n or ex

p licit an d d etailed v erb al d escrip tio n or

n arrativ e acco u n ts o f sex u al ex citem e n t, sex u al

co n du ct, o r sad o

- m a so ch istic ab u se, an d w h ich is h arm f u l to m in o rs; o r an en actm en t of sex u al co n d u ct

o r s ad o

- m aso ch istic ab u se, o r ex h i b itio n o f sex u al

ex citem en t, b y

o n e o r m ore p erso n s.

“ Harm f u l to m in o rs” is d ef

in ed as:

[T ]h at q u ality o f an y d escrip tio n o r rep resen tatio n , in

w h atev er f o rm , o f sex u al co n d u ct, sex u al ex citem en t, or sad o

- m aso ch istic ab u se if , w h en tak en as a w h o l e, it:

(a) A cco rd in g to co n t em p o rary co m

m u n ity stan d ard s ap peals to th e p ru

rien t in terest in sex ;

(b ) Po rtray s sex u al co n du ct, sex u al ex citem en t o r sad om aso ch istic ab u se; an d

(c) Do es n o t h av e serio u s l iterary

, artistic, p o litical or scien t if ic v alu e.

“S ex u al co n du ct” is d ef

in ed as “ an y sex u al act, n o rm al o r p erv er t e d

, o r

an y act o f m astu

r b a t i o n , ex creto ry f

u n ctio n s, or lew d ex h ib itio n o f th e g en itals.” A n ch o rag e Mu n icip al Co d e § 8 .5 0 .0 2 0

.A R M S T R O N G V

. A S S E L I

N 6

pornog raphic appears to d escribe a nig htmarish sex ual
encount er between a man and some sort of female alien
creatur e w h o i njures and kills people, or perhaps k ills some other sort of man-like creature.

About a w eek later, another couple approached the police concerned a

bout their own s o n, M.L
., and his contact with Armstrong

. As with L .T., M.L

. met Armstrong online. M.L

. was friends with L

. T

. and was with him when Armstrong
ga v e Satan Burger to L .T. in the parking lot of a mo v i e theater. Armstrong also g ave M.L

. a web cam, knives, a bag

, and a n i n f

latable alien d oll. A t one point, Armstrong told M.L

. to g o t o a secret location to p ick up some musical equipment an d sug g ested that M.L

. should take a weapon with him to the secret location. Aft e r the investig ation into Armstrong beg an, he sent a s e r ies of messag e s to M.L

. demanding to know why M.L

. had cut off contact, adding that he would “try to defend my self and r espo n d t o whatever bullshit the cops told y o u, but y ou, y our brother, and y o ur d ad won’t even let me.”

L .T. and M.L .’s fathers e a ch cal l e d Armstrong individually a

nd told him not t o c o n t act their families any

more. After those conversations, Armstrong chang ed one o f his online screen names to “ J ohn [ L ] is a pedophile” ( J ohn [ L ] i s the father of M.L .) and c ontinued to contact L

. T. despite the parental demand tha t he stop. Officer Asselin obtained what are called Glass w a r rants to r ecord these conversations, as required under Alaska law. 4

4 S ta te v. Gla ss , 5 8 3 P .2 d 8 7 2
, 8 8 1 (A lask a 1 9 7 8) (req u i rin g t h a t a

w arran t be ob tain ed to reco rd a co n v ersatio n , u n l ess all p arties co n sen t to th e reco rd in g ).A R M S T R O N G V

. A S S E L I

N 7

On November 21, 2005, a s e a rch warrant was issued on the b asis of an affidavit describing the above f act s i n g reat detail. The warrant application also included a four-p a ge

ex c e rpt of Satan Burger
, photocopies of the cover pict u r e, author statement, and copies of the o nline communicat i on between Armstrong a

nd the b oy s. The warrant commanded 5

a search o f Armstrong ’s h ome for evidence of disseminating indecent material to minors a nd of stalking

. 6 Officer Asselin simultaneously obtained an a rrest war r ant charg ing Armstrong with disseminating i n d ecent material to minors. The state d istrict judg e who approved b oth warrants reviewed the applications at the same time, d id not request the full copy of Satan Burger
, and consulted the disseminat ion ordinance prior to s i g ning

. T he following day

, after arresting Armstrong
, Officer Ass e l i n o btained search w arrants for Armstrong ’s car and his workplace desk, ag ain to search for evidence of stalking and dissemination of indece n t material
to minors. Computers from Armstrong ’s workplace a nd home were seiz ed during these searches. A prel i m i n ary search of the computers revealed photo gr a p hs of identified victims “using a toilet,” a book a b o u t why men abuse children, and videos of nude y oung males.

The municipal charg e for disseminating indecent material
to minors w as e v entually dismissed by the municipal prosecutor o n March 10, 2006. B efore returning the property

5 T h e A lask a se a r c h w arran t f o rm , l ik e m o st, say s to p o l ice o f f icers,

“ Y o u are h ereb y

co m m an d ed to search . . . .”

6 In A lask a, a p erso n co m

m its th e crim e o f stalk in g in th e seco n d d eg ree b y k n o w in g ly en g ag in g in “ rep eated acts o f n o n co n sen s u al co n t a c t in v o lv in g th e v ictim o r a f am ily m em b er,” th at “ reck lessly

p l aces [th em ] in f ear o f d eath o r p h

y s ical in j u ry , o r i n f ear of th e d eath o r p h y sical in j u ry

o f a f am ily m em ber.” A L

A SK A S T A T . § 1 1.4 1 .2 7 0

.A R M S T R O N G V

. A S S E L I

N 8

that had been taken during the investig a tion, Officer Asselin decided to look at it more thoro ug hly than he had. Armstrong ’s hard drives contain e d a photog raph of two naked prepubescent boy s, o ne performing fellatio on the other. Upon discovering the photog raph, the p olice stopped looking
at the material on the drives u ntil they g o t another search
warrant to ex amine all the computer media and other sources for evidence o f possession “ a n d/or” distribution of child
pornog raphy

. A f

ter g etting this latest warrant, the police found at l e a s t 274 photog raphs o f minors previously identified as having been sex ually ex ploited. O fficer Asselin then arrested A rmstrong f or possession o f child pornog raphy

on Aug u st 1
, 2007. Three subseq u e nt search warrants were issued to search Armstro n g’ s My space account, residence, and finally his Hotmai l a c count for possession “and/or” distribution of child pornog raphy

. T h e last two of these
warrants were issued to Officer V andeg riff. 7 E a ch of the affidavits in support of these w arrants set out the facts just described.

This second criminal case ag ainst A rmstrong ended a fter the Alaska Superior Court g ranted a m otion to suppress all the evidence. The court concluded that the Glass w arrant to record the telephone c a ll be t w e e n Armstrong a nd L .T.’s father was not su p p o rt e d by probable cause to show that Arms t rong was d isseminating indecent material to minors. The Anchorag e ordinance d efines “indecent material” as that which, “taken a s a whole,” violates the indecency standards and lacks serious literary

, artistic, political or scientific value. Officer Asselin g ave the mag istrate a little bit of the book a nd

7 O v er th e co u rse o f th e in v estig atio n , of f icers T h o m as, Ro h w er, Gilm o u r, an d P ark er in t e r v i e w ed th e v ictim s an d assisted in b o th th e search es o f

A rm stro n g ’ s resid en ce an d p ro p erty an d h is arrests.A R M S T R O N G V

. A S S E L I

N 9

said in his affidavit that he had “re v i e w e d p o rtions of the book” and f

ound “one particular portion of the book [ that]

ex p lici t l y d escribes a sex ual encounter.” Since neither the police officer nor the issuing mag istrate had read the book a s

a whole, the Alaska Superior Court ruled that there w a s n o probable cause to believe S atan Burger was indecent under the ordinance, so t here was no p robable cause for the Glass
warrant. The Superior Court ex p ressed concern that “ search
warrants issued upon showing s such as this woul d easily implicate school teachers, p u b lic librarians and w ell established b o o k s e l l ers for d issemination of indecent material
to minors.” B ecause all the subsequent warrants were “ based
upon statements made during that initial [ recorded telephone]
conversat i o n ” between Armstrong and the b o y ’s f ather, evidence g athered under those warrants was likewise tainted and the motion to suppress all evidence was g ranted.

Armstrong then sued Officer Asselin, fiv e other police officers, and the Municipality of Anchorag e in f ederal district
court for v iolating his constitutional rig hts. H e rep r e sented himself. Defendants moved for summary judg ment based on qualified immunity

. I n his affidavit supporting summary judg men t , Officer Asselin said that the eleven warrants

o b t ained were soug ht by two police officers (himself a n d Vandeg riff), i s s u ed by five different judicial officials, a nd that, at the outset of the investig ation a nd as it proceeded, he had conferred with three municipal prosecutors and then when it be c a m e a felony charg e, three state prosecutors. None had “ex pressed concern reg arding the validi t y o f the investig ation.”

The d istrict court dismissed Arm s t rong ’s complaint
ag ainst the municipality a n d ag ainst the officers in their official capacity

, b ut g ranted him leave to f ile a thirdA R M S T R O N G V

. A S S E L I

N 10

a m e n d ed complaint ag ainst the officers in their individua l capacities. I n the order, the d i strict court told this pro se litig ant what needed to be set out in the complaint, if true, to survive dismissal. Apply ing Saucier v. Katz 8 and Zurcher v

. Stanford Daily

, 9 the district c ourt concluded that a trier of fact could reasonably conclude that a r easonable police o fficer would k now that his a ffida vits did not establish probable

cause that the book Satan B u r g e r , “ taken as a whole,” was obscene, a nd therefore the officers were not entitled to qualified immunity

. Various subsidiary matters a nd cross motions reg a

rding san ct i ons and d iscovery were also addressed, but are of no sig nificance to this a p p e a l. The police officers a

ppeal the interlocutory orde r d e n y ing the motion for qualified immunity

. 1 0

ANALYSIS

The A laska Superior Court’s suppression order was based

on the absence of p robable cause supporting the initial Glass

w a r r ant authoriz ing Asselin to record the conversation between Armst rong and L

. T.’s father. The Alaska

c o n s t i t u t i o n r e q u i re s t h at a w ar r a n t i s s u e b e f o r e surreptitiously recording a co nversation. 1 1 U nder federal

8 S a u cier v. Ka tz , 5 3 3 U.S. 1 9 4, 2 01 (2 0 0 1 ).

9 Zu rch er v. S ta n

fo rd Da ily , 4 3 6 U.S. 5 4 7 , 5 6 4

– 6 5 (1 9 7 8 ).

10 T h is co u

rt h as j u risd ictio n to rev i e w a d istrict co u rt’ s d en i al of
q u alif ied im m u n ity u n d er M

itch ell v. Fo rsyth

, 4 7 2 U .S. 5 1 1
, 5 2 6

– 2 7 (1 9 8 5). S ee a lso Lib era l v. Estra d

a , 6 3 2 F.3 d 1 0 6 4
, 1 0 7 4 (9 th Cir. 2 0 1 1 ).

11 Sta te v. Gla ss , 5 83 P .2 d 8 7 2
, 8 8 1 (A lask a 1 9 7 8 ) (“ A lask a’ s Co n stitu tio n m an d ates t

h at its p eo ple b e f

ree f ro m in v asio n s o f priv acy b y

m ean s o f su rrep t itio u s m o n i to rin g o f co n v ersatio n s.”).A R M S T R O N G V

. A S S E L I

N 11

constitutional an d s t a tutory law, b y contrast, no warrant is
necessary so long as one of the t wo parties to the conversation consents to the recording

. 1 2 Since Armstrong ’s § 1983 civil rig hts claim must rely on the deprivation of any rig hts “secured by the Co nstitution and laws” of the United States, violation of t h e Alaska constitution alone does not establish a basis for a § 1983 lawsuit. The a bsence o f a g ood

warran t f or the recorded conversations with Armstrong is immaterial to this federal case. Armstrong ’s claims must arise, if at a ll, from the subsequent search and arrest warrants. W e therefore focus on November 21, 2 0 05, when Asselin

o b t a i ned a warrant to search Armstrong ’s home, a nd t h e arrests and searches on and after that date.

The claim ag ainst Asselin and the f i ve other officers is basically that any reasonable p o lice o fficer should have known that the search and a r rest warrants violated the F ourth Amendment. The c ore of the arg ument is that a short e x cerpt of Satan Burger could not establish p r o b a b l e cause for a search, b ecause, as the Alaska Superior Court recog niz ed, the Anchorag e ordinance requires that the work, “taken a s a whole,” must be “indecent.” The United States district court

came to the same conclusion, reasoning that the Anchorag e ordinance targ e ted obscene material and thus probable cause lies only where “ t h e material, taken as a whole ” is o bscene.

12 Un ited S ta tes v. W

h ite
, 4 0 1 U.S. 7 4 5 (1 9 71 ); Un ited S ta tes v. Ca ceres , 4 4 0 U.S. 7 4 1
, 7 4 4 (1 9 7 9 ) (“ Neith er th e Co n stitu tio n n o r an y Act of Co n g ress req u ires th at o f f icial ap pro v al b e secu red b ef o re co n v ersatio n s

are o v erh eard o r reco rd ed b y Go v ern m en t ag en ts w ith th e co n sen t o f on e

o f th e co n

v ersan ts.”) ; 1 8 U

. S

. C. § 2 5 1 1 (2 )(c) (“ It sh all n o t b e u n l aw f u l

u n d er th is ch ap t er f

o r a p erso n actin g u n d er c o l o r o f law t o in tercep t a

w i r e, o ral, o r electro n ic co m m u n icatio n , w

h ere su ch p erso n i s a part y t o th e co m m u n icatio n o r o n e of th e p arties to th e co m

m u n icatio n h as g iv en p rio r co n s en t

to su ch in tercep tio n .”).A R M S T R O N G V

. A S S E L I

N 12

Since a few pag es could not establish obscen i t y , o r i n d ecency , under the ordinance, a reasonable officer wou l d know th a t Asselin’s warrant applications failed to establish probable cause.

W e a g ree that the ex cerpt could not by itself establish indecency or obsc e n ity

. To be “ o bscene,” Satan Burger would have to satisfy the Supreme Court’s M iller s tandard: (a) the a verag e person, apply ing contemporary c o m munity standards would find that the work, taken as a whole, appeals
to the prurient interest; (b) the wo r k d e p i c ts or describes, in

a patently o ffensive way , sex ual conduct specifically defined by the applicable state law; a nd ( c ) the work, taken as a whole, lacks serious literary

, artistic, politi ca l, o r scientific value. 1 3 W ithout ex amining the work as a whole, the standard
cannot be applied. The picture on the cover looks disg usting

, as thoug h ex cretion is sug g ested, but cannot b y itself, or with the short ex cerpt, establish indecency

. I t is not clear that even t h e ex c erpt “appeals to the prurient interest” any mo r e t h a n

a description of disorders a n d anatomical d efects of the
vag ina found in medical treatises.

This case, thoug h, is not an obscenity case, or a criminal prosecution for obscenity or indecency

, o r an attempt to limit publication or circulation of any material, including Satan Burger

. T his is a civil lawsuit, primarily for money d amag es, ag ainst police officers f

or obtaining and e x ecuting search a nd

1 3 Miller v. Ca lifo rn ia
, 4 1 3 U.S. 1 5
, 2 4 (1 97 3 ); a cco rd Un i ted S ta tes v. S ch a les

, 5 4 6 F. 3 d 9 6 5
, 9 7 0 (9 th Cir. 2 0 0 8 ). A s P ro f esso r Kath leen Su lliv an h as p u t i t, th e m aterial h as to “ tu rn y ou o n an d g ro ss y o u ou t” at th e sam e tim e. J ef

f rey Ro sen , T HE N E W A T L A NT I S , Th e En d of Ob scen ity
, h ttp ://w w w .th en ew at lan tis.co m

/p u b licatio n s/th e- en d

- o f

- o b scen ity (last

v isited Sep t . 1 0 , 2 0 1 3 ).A R M S T R O N G V

. A S S E L I

N 13

arrest w arrants. 1 4 W e need n ot d etermine whether Satan Burger is “indecent” or “obscene,” because t h a t does not control whether Officer A sselin and his col leag u es a re entitled to qualified immunity

. W e assume without deciding

, f or purposes of this decision, that Satan Burger
, taken a s a whole, is not obscene o r indecent, a nd that g iving the b ook to a minor did not violate the Anchorag e ordinance.

This assumption, however, does not control the qualified immunity d e termination for two reasons. F irst, all that is needed for a search or arre s t wa rrant is probable cause, not proof, that g iving the material to a minor would amount to a violation of the Anchorag e ordinance. 1 5 T he co v e r (portray ing a bare buttocks squatting over a dinner plate) a nd the few pag es support a reasonable belief by a police officer that the work as a whole portray ed ex c retory functions o r

sex ual conduct in a manner establ ishing violation of the ordinance. Even if the book were, on a f ull reading

, not indecent, it would be too much to say t h a t no reasonable police officer could seek a search war r a n t directed at the premises of the person who g ave it to a minor until the police officer had read every word of the book a nd evaluated its

14 A rm s tro n g also seek s an in j u n ctio n directin g th e retu rn o f h is p ro p erty

an d in f o rm atio n relatin g to th e in v estig atio n o f h is p ro p erty

.

15 Illin ois v. Ga tes , 4 6 2 U .S. 2 1 3
, 27 1

– 7 2 (1 9 8 3 ) (“ B u t Ag u ila r an d S p in elli

, lik e o u r o th er cases, d o n o t r e q u i re th at certain g u ilt b e estab lish ed b ef

ore a w arran t m ay p ro p erly b e i ssu ed

. On ly th e p ro b ab ility

, an d n o t a p rim a f

acie sh o w in g , o f crim in al activ ity is th e s tan d ard of
p ro b ab le cau se.”) (in tern al q u o tatio n m ark s an d citatio n s o m i t ted ); a cco rd Un ited S t a t e s v

. Bro b st , 5 58 F.3 d 9 82
, 9 9 7 (9 th Cir. 2 0 0 9 ) (“ Pro b ab le

cau se req u ires m o re th an b are s u s p icio n b u t n eed n o t b e b ased o n ev id en ce

s ufficien t to su

p po rt a co n v ictio n , n o r ev en a sh o w in g th at th e o f f icer’ s b elief is m o re lik ely tru e t h an f alse.”) (in t ern al q u o tatio n m ark s an d citatio n s o m i tted ).A R M S T R O N G V

. A S S E L I

N 14

literary value as a whole. A police officer may be entitled to qualified immunity even for a search and a rr e s t based on invalid warrants if h e has a “reasonable belief that the warrant

was supported by probable cause.” 1 6 That low standard mig ht be satisfied without read i n g t h e book in its entirety

, even thoug h the o b s cenity and municipal indecency standards would not be satisfied f

or purposes of a criminal conviction.

Second, a nd most important to the outcome of th is c ase, the police o f

ficers s u b jected every step of their invasions o f Armstrong ’s privacy to evaluation b oth by prosecutors a nd b y neutral judicial officials before they acted. Such prior r eview of p roposed searches and a r rests su p ports qualified immunity

, shielding police officers from liability under the line of cases reaffirmed and broadened most recently by Messerschmidt v

. Millender

. 1 7

Reversing our en banc decision, the Supreme Court held i n Messerschmidt that, even a ssuming a search warrant should n ot have been issued, p olice of f i c ers who requested and ex e cuted it are i m m u n e from suit ex cept in “rare” instances. Presentation to a superi o r officer and prosecutor, and approval b y a judicial officer before the w arrant is issued, “demonstrates that any

error was not obvious.” 1 8

T he question in this case is not whether the
mag istrate e rred in be l i eving there was sufficient probable cause to support the scope

16 Messersch mid t , 1 3 2 S. Ct. at 1 2 50

.

17 Id

.

18 Id

. at 1 2 5 0

.A R M S T R O N G V

. A S S E L I

N 15

of the warrant he issued. I t is instead whether the mag istrate so obviously erred th a t a n y reasonable officer would have recog niz ed the

error. The oc c a sions on which this standard will be met may be rare, but so too are the circumstances in which it w ill be appropriate
to impose personal liability on a lay officer in the face of judicial approval of his actions. 1 9

The Court rejected the notion that review by superiors o r mag istrates was irrelevant to t h e c ontrolling question o f whet h e r “it is obvious that no reasonably competent officer would h ave concluded that a warrant should issue.” 2 0 “I ndeed, a contrary conclusion would mean not only that [ the police officers] were plainly inco m p e t e nt, but that their

su pervisor, the deputy district a ttorney , and the mag istrate

were as well.” 2 1 Apply ing the Leon standard, 2 2 the Court h eld that, where the search or seiz u re is ex ecuted pursuant to a

w a r r ant, the fact that a neutral mag istrate issued the warrant “is the c learest indication that the of ficers a cted in an objectively reasonable manner.” 2 3 The warrant confers a

19 Id

.

20 Id

. at 1 2 4 5

.

21 Id

. at 1 2 4 9

.

22 Un ited S ta t es v. Leo n , 4 6 8 U.S. 8 9 7 (1 9 84 ).

23 Messersch mid t , 1 3 2 S. Ct. at 1 2 45

.A R M S T R O N G V

. A S S E L I

N 16

“shield of immunity ” 2 4 lost only in “rare” 2 5 circumstances,

even f or mistakenly issued warrants. I t is the “ma gistrate’s responsibility to determine whether the offi cer’s alleg ations establish probable c ause” 2 6 —that is, a “fair probability ” that evidence of a crime will be found. 2 7 Qualified immunity for police officers does n o t ev en r equire that much, because a s Ashcroft v. al-Kidd held, the shield “protects all b u t the plainly incompetent or t h o s e who k nowing ly violate the law.” 2 8

Under Messersch m i dt

, consulting with and g etting approval o f one’s superiors and of a judicial officer o perates for an individual police officer something like liability insurance, t houg h, like liability insurance, there a re

ex c e ptions a

nd ex clusions to protection. One such ex c eption

occurs when “it is obvious that no reasonably competent officer would h ave concluded that a warrant should issue.” 2 9 The Court illustrates this “obvious” standard by reference to

a w a rr a n t that authoriz ed the search of a house for a concealed two story house and to seiz e that house concealed within the h ouse to be searched—an obvious error that would

24 Id

. at 1 2 4 5

.

25 Id

. at 1 2 5 0

.

26 Id

. at 12 4 5 (q u o t in g Un ited S ta t es v. Leo n , 4 6 8 U.S. 8 9 7, 9 2 1 (1 9 8 4 )).

27 Illin o is v. Ga tes , 4 6 2 U.S. 2 1 3 , 2 3 8 (1 98 3 ).

28 Messersch mid t , 1 3 2 S. Ct. a t 1 2 4 4 ( q u o tin g Ash cro ft v. a l-Kid

d

, 1 3 1 S. Ct. 2 0 7 4 , 2 0 8 5 (2 0 1 1)).

29 Id

. at 1 2 4 5

.A R M S T R O N G V

. A S S E L I

N 17

have been reveale d b y “j u st a simple g lance.” 3 0 The Court uses the e x ample to show that “obvious” means error that is

a p p a rent from a “simple g lance” at the face of the warr a n t itself, not a d efect that would “become apparent only upon a close parsing of the warrant applicatio n

. ” 3 1 Of c ourse, such patent absurdity is n ot the only way the police officer can lose the shield of immunity

. Leon establishes that another way the “hig h” threshold for establishing an ex ception to i m m u nity

can be crossed is if the officer lied to the issuing mag istrate, 3 2

or if the issuing mag istrate did not perform his neutral a nd detached function, serving instead as a mere “r u b ber stamp for the police.” 3 3

Leon holds that the e x clusionary r u l e i s a policy rule to deter police miscondu c t , n o t to punish judicial error, so the
purpose of the ex clusionary rule is not served by ex cluding

30 Id

. at 1 2 5 0 (d iscu ssin g Gro h v. Ra m irez , 5 4 0 U.S. 5 5 1 (2 0 0 4 )).

31 Id

. at 1 2 5 0

.

32 Un ited S ta t es v. Leo n , 4 6 8 U

. S

. 8 9 7
, 9 1 4 (1 9 84 ) (“ th e d ef eren ce

acco rd ed to a m ag istrate’ s f in d i n g o f p ro b ab l e cau se d o es n o t p r e clu d e in q u iry in to th e k

n o w in g o r reck less f

alsity o f th e af

f id av it o n w

h ich th at d eterm in atio n w as b ased ”). In h is b rief to th is co u rt, A rm stro n g su g g ests th at A sselin an d t

h e o t h er o f f icers m ad e m aterial m isrep resen tatio n s an d

o m issio n s w

h en seek i n g t h e w arran ts. T h ese arg u m en t s are w ith o u t

su p p o rt i n th e reco rd so w e d o n o t ad d ress th e m isrep resen tatio n ex cep tio n to im m u n ity

.

33 Id

. (“ th e co u rts m

u st also in sist th at th e m ag istrate p u rp o rt to p erf o rm h is n eu tral an d d etach ed f u n ctio n an d n o t serv e m erely as a ru b b er stam p f o r th e p o lice”) (in tern al q u otatio n m ark s o m i tted ).A R M S T R O N G V

. A S S E L I

N 18

e vidence obtained on a warrant mistakenly issued. 3 4 L ikewise, the Messerschmidt “shield of immunity ” applies to damag es awards ag ainst individual police officers who obtain and ex ecute warrants. 3 5 The “shield” of qualified immunity gi v es police an incentive to submit their proposed search o r seiz ure to a neutral judicial officer rather than raiding h omes and invading privacy on their own. Once a neutral mag istrate
approv e s of the search or seiz ure, “ a n officer c annot be

ex p ec ted to question the mag istrate’s probable-cause determination or his judg ment that the form of the warrant is technically sufficient.” 3 6 Messerschmidt holds that “the fact that a neutral mag istrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable

man n e r

. ” 3 7 Search and arrest warrants, ty pically and in this
case, say to the police “y o u are commanded,” not “y ou may , ” search or arrest.

Since Messerschmidt c a me down, we ha v e identified “rare” ex ceptions, at least in the cont e x t of motions to suppress in criminal cases. W e held in United States v. Grant that evidence should have b een suppressed where t h e affidavit esta b lished o nly the most tenuous and remote connection between the evidence sou gh t a nd the p lace to be

34 Id

. a t 9 2 1 (“ P en alizin g th e o f f icer f o r th e m ag istrate’ s erro r, rath er th an h is o w

n , can n o t lo g ically co n trib u te to t h e deterren ce o f Fo u rth A m en d m en t v io latio n s.”).

35 S ee Owen v

. C i t

y o f In d ep en d en ce, Mo

. , 4 4 5 U.S. 6 2 2
, 6 51 (1 9 8 0) (statin g t h at th e p u rp o ses o f § 1 9 8 3 actio n s a r e c o m p en satio n an d d eterren ce).

36 Leo n , 4 6 8 U.S. at 9 2 1

.

37 Messersch mid t , 1 3 2 S. Ct. at 1 2 45

.A R M S T R O N G V

. A S S E L I

N 19

searched, and where there was no review by a superior officer

or prosecuto r

. 3 8 The rare ex ception to the shield a pplied where there was not e ven a “colorable arg ument” and the affidavit set out no “plausible connection” between the place
to be searched and objects to b e seiz e d and the crimi n al investig ation. 3 9 I n United States v. Underwood

, w e u p h eld suppression where a “bare-bones” a ffidavit cont a i n e d nothing but “foundati o n l e s s e x pert o p inion and conclusory alleg ations,” and lacked a

ny recitation of “underly

ing f acts so that the issuing judg e can dr a w his o r her own reasonable inferences and conclusions.” 4 0 Most important, the officer “did n o t h ave a supervisor or any o ne e lse review, let alone
approve, his affidavit.” 4 1 B ecause both these cases m u s t be disting uished on the c ontents of the affidavits and the lack o f review by superior off

icers or prosecutors, w e need not determine whether, after M esserschmidt

, falling outside Leon necessarily means the police officer lacks qualified immunity from suit. 4 2

This case is more sensitive than many , because i t gr ows out of the distribution of a book. As the district court and the Alaska Superior Court recog niz e d, ov e rl y ag g ressive use o f

38 Un ited S ta t es v. Gra n t , 6 82 F.3 d 8 27 (9 th Cir. 2 0 1 2).

39 Id

. at 8 4 1

.

40 Un ited S ta tes v. Un d

erwo o d

, 7 25 F.3 d 1 07 6
, 10 8 1

– 82 (9 th C ir. 2 0 1 3 ). T h e m an date h as n o t, as o f th is w ritin g , issu ed in Un d

erwo o d

.

41 Id

. at 1 0 8 7 –8 8

.

42 A lth ou g h f

allin g w ith in Leo n n ecessarily m ean s th at th e p o lice o f f icer d o es en j o y q u alif ied im m u n i ty

. Un ited Sta tes v. N

eed ha m , 7 1 8 F.3 d 1 1 9 0
, 1 1 9 4 (9 th Cir. 2 0 1 3 ).A R M S T R O N G V

. A S S E L I

N 20

the Anchorag e municipal ordinance could indeed threaten school teachers, librarians, and bookstores, if a police officer could merely ex cerpt the apparently sex ual o r ex cretory references from a book to justify searches and arrests. Zurcher v. Stanford Daily establishes that warrants may issue

even to search a newsp a p er office for evidence of crimes b y third parties, but “ w h e re the materials soug ht to be seiz ed
may be protected by

the F irst Amendment, the requirements of the F o urth Amendment must be applied with sc rupulous

ex a c titude.” 4 3 “[ W ]here se iz ure is soug ht of alleg edly obscene materials, the judg ment of the arresting officer alone is insufficient to justify issuance of a search w arrant” and the probable c ause determination “must afford an opportunity for the judicial o fficer to focus searching ly on the q u estion o f obscenity .” 4 4 W e a s s u m e for purposes of this decision that the affidavits in this case were insufficient under Z u r c her because t h e c over picture and the four pag es of tex t that the police officers submitted to the judicial officials w e r e not sufficient f

o r the judicial o fficials to “focus searching ly ” on the questi o n o f whether Satan Burger
, as a whole, was indecent or obscene. W e do not sug g est and need not address whether Zurcher

affects child pornog

raphy searches.

Even if Zurcher does bear on searches such a s the one at issue, it cannot resolve this case for two reasons. F irst, Zurcher does not speak to the qualified immunity shield, a nd Messerschmidt holds that the shield ordinarily applies even to

43 Zu rch er v. S t

a n fo rd Da ily

, 4 3 6 U

. S

. 5 4 7
, 5 6 4 (1 9 7 8) (in tern al
q u o tatio n m ark s o m itted ).

44 Id

. at 5 6 5 (in tern al q u o t atio n m ark s o m itted ).A R M S T R O N G V

. A S S E L I

N 21

a mistakenly issued warrant. 4 5 Zurcher speaks to the review

a judicial officer must p erform before issuing a wa rr ant, not to what an officer must set out in his warra n t a p plication in

o r d e r t o p r e s e r v e q u a l i f i e d i m m u n i t y

. 4 6 U n d e r Messerschmidt

, approval by superiors, prosecutors, an d a judg e almost g uarantees the honest police officer’s c l a i m to qua lified immunity

. 4 7 Officers Asselin and Vandeg riff consulted with six prosecut o r s a nd obtained warrants from five judicial o fficials. As Messerschmidt holds, w e would have to tr e a t a l l eleven p rosecutors and judg e s as “plainly incompe t e n t ” to deny Officer Asselin and the other officers qualified immunity

.
Second, the officers in this case were not searching f or o r seiz ing Satan Burge r

. They already h ad the book. The affidavits f

ocused upon the repeated contacts between an older man and underag e boy s despite parental requests that he leave their sons alone, his g iving of g ifts to the boy s, his
sug g estion to a boy that he carry a weapon when he retrieved his g ifts, a

nd meeting with the boy s in secret. T h e searches

were for evidence o f disseminating indecent material, stalking the boy s, and eventually possession of child
por n o gr aphy

, not for the book. The police officers, prosecutors, and judicial officials were not “plainly incompetent” in c o n cluding that there was a fair probability that t h e searches would turn up evidence of stalking a nd

45 Messersch m id t , 1 3 2 S. Ct. at 12 4 5 (“ w h ere a m a g i strate acts

m istak en l y in i s su i n g a w arran t bu t w ith i n th e ran g e o f p ro f essio n al

co m peten ce of a m ag istrate, th e of f icer w h o req u ested th e w arran t can n o t b e h eld liab le”).

46 Zu r ch er , 4 3 6 U.S. at 5 6 5

.

47 Messersch mid t , 1 3 2 S. Ct. at 1 2 45 , 1 2 4 9

.A R M S T R O N G V

. A S S E L I

N 22

d issemination o f indecent material to minors. The subsequ e n t search and a

rrest w ar ra nts w ere supported b y even g reater evidence of probable cause, including pictures of the v ictims urinating

, a n d the photog raph of prepubescent b oy s performing fellatio. Those photog raphs did indeed pr o v i d e

a fair probability tha t the search would reveal evidence o f possession of c hild pornog raphy on Armstrong ’s computers, and thus Officer Vandeg riff, the officer w h o a p p lied for the last two warrants, is protected by qualified immunity

. 4 8

Under Messerschmidt

, we must reverse. Officer Asselin and the f ive other o fficers d emonstrated t h e i r entitlement to the M es serschmidt “ shield of immunity ” from suit. The claims ag a inst them oug ht to have been dismissed. 4 9

REVERSED and R EMANDED for dismissal.

48 A s to th e rem ain in g f

ou r o f f icers, T h o m as, Ro h w e r , G ilm o u r, an d P ark er, A rm stro n g arg u ed in h is m o t io n o p p o sin g su m m ary j u d g m en t th at th ey “ k n ew ” th ey w ere v i o latin g h is Fo u rth A m en d m en t rig h ts. Bu t A rm stro n g fa i led to p ro d u ce an y ev id en ce su

p p o rtin g th ese bare

co n clu sio n s. T h e d i s t r ict co u rt sh o u ld h av e g ran ted th e m o tio n f or

su m m ary j u d g m en t as to th ese o f

f i cers.

49 In h i s p ro s e b rief

, A rm stro n g m ak es v ario u s o th er arg u m en ts, s u ch as th at th e l o catio n w

h ere h e w o rk ed w as ou tsid e th e m u n icip al b o u n daries, b u t th ese arg u m en t s l ack m erit or d o n o t b ear o n th e q u alif ied im m u n ity issu e.