Jared Armstrong v. Gerard Asselin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JARED ARMSTRONG, No. 10-35777

Plaintiff-Appellee,

D.C. No.

v. 3:07-cv-00243-

TMB

GERARD ASSELIN; KEVIN

VANDEGRIFF; MARK THOMAS; LEE

ROHWER; WALTER GILMOUR; DAVID OPINION

PARKER; MUNICIPALITY OF

ANCHORAGE,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, District Judge, Presiding

Argued and Submitted July 25, 2011

Submission Withdrawn August 3, 2011

Resubmitted October 2, 2013*

Anchorage, Alaska

Filed November 1, 2013

*

We withdrew this case from submission pending the Supreme Court’s

decision in Messerschmidt v. Millender, 132 S. Ct. 1235 (2012). After

Messerschmidt came down, we obtained supplemental briefs addressing

its effect on this case.

2 ARMSTRONG V. ASSELIN

Before: Andrew J. Kleinfeld, Sidney R. Thomas,**

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Kleinfeld

SUMMARY***

Civil Rights

The panel reversed the district court’s order denying

qualified immunity to police officers and remanded for

dismissal of an action brought under 42 U.S.C. § 1983 by a

pro se plaintiff who alleged that his Fourth Amendment rights

were violated when his home, workplace, and car were

searched and he was arrested for disseminating indecent

materials to minors.

Plaintiff’s claim against the defendants was that a

reasonable officer would know that the warrant applications

failed to establish probable cause. The panel held that given

the circumstances of this case, the police officers,

prosecutors, and judicial officials were not plainly

incompetent in concluding that there was a fair probability

that the searches would turn up evidence of stalking and

**

Judge Betty B. Fletcher was a member of the panel but passed away

after oral argument. Judge Thomas was drawn to replace her. He has read

the briefs, reviewed the record, and listened to the tape of oral argument

held on July 25, 2011.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ARMSTRONG V. ASSELIN 3

dissemination of indecent material to minors. The panel

noted that police officers subjected every step of their

invasions of plaintiff’s privacy to evaluation both by

prosecutors and by neutral judicial officials before they acted.

The panel held that such prior review of proposed searches

and arrests supported qualified immunity, shielding police

officers from liability under the line of cases reaffirmed and

broadened most recently by Messerschmidt v. Millender,

132 S. Ct. 1235 (2012).

COUNSEL

Joyce Weaver Johnson (argued), Assistant Municipal

Attorney; Dennis A. Wheeler, Municipal Attorney,

Municipality of Anchorage, Anchorage, Alaska, for

Defendants-Appellants.

Jared Armstrong (argued), pro se, Anchorage, Alaska,

Plaintiff-Appellee.

OPINION

KLEINFELD, Senior Circuit Judge:

Armstrong sued several police officers and the

municipality that employed them.1 His forty-three page

second amended complaint is pro se and hard to understand,

1

Armstrong has not appealed the district court’s order dismissing his

suit against the officers in their official capacity and the municipality of

Anchorage. The six officers appeal the district court’s order denying them

qualified immunity. We address only that aspect of this case.

4 ARMSTRONG V. ASSELIN

but the core of it is a § 1983 claim for violation of his Fourth

Amendment rights in their searches and seizures and his

arrest pursuant to warrants. The police officers moved to

dismiss based on qualified immunity, their motion was denied

in district court, and they have filed this interlocutory appeal

pursuant to Mitchell v. Forsyth.2 We reverse.

BACKGROUND

The initial proceedings took place in state court. The

parents of a fourteen-year-old boy, L.T., came to the police

complaining that Armstrong, a man in his late thirties, was

befriending and giving pornography to their son. The parents

told Officer Asselin that Armstrong met their son online and

had communicated with him through email, instant

messaging, and over the phone. The boy’s mother had seen

that Armstrong was talking to her son over instant messaging

about “drinking tequila and about giving a ‘blow job’ to his

teacher.” The parents also told Asselin that, after coming

home from a movie, L.T. was carrying a copy of Satan

Burger—the book they thought was pornographic. The

parents gave the book to Asselin, who, after looking over

portions of it, thought the book might qualify as “indecent”

under an Anchorage municipal code section prohibiting

distribution of indecent material to minors.3

2

Mitchell v. Forsyth, 472 U.S. 511, 526–28 (1985).

3

The ordinance defines the following as “indecent material”:

[A] picture, photograph, drawing, sculpture, motion

picture film, or similar visual representation or image of

a person or portion of the human body which depicts

sexual excitement, sexual conduct, or sado-masochistic

abuse which is harmful to minors; a book pamphlet,

ARMSTRONG V. ASSELIN 5

The cover of Satan Burger has a picture of naked buttocks

squatting over a dinner plate. The book describes itself as a

“collage of absurd philosophies and dark surrealism . . .

[f]eaturing a city overrun with peoples from other dimensions

. . . a man whose flesh is dead, but his body parts are alive

and running amok, an overweight messiah, the personal life

of the Grim Reaper, lots of classy sex and violence, and a fast

food restaurant owned by the devil himself.” The pages

included in the record and provided to the magistrate judges

are bizarre. As best we can tell, the part claimed to be

magazine, printed matter, however produced, or sound

recording which contains any matter enumerated in this

definition or explicit and detailed verbal description or

narrative accounts of sexual excitement, sexual

conduct, or sado-masochistic abuse, and which is

harmful to minors; or an enactment of sexual conduct

or sado-masochistic abuse, or exhibition of sexual

excitement, by one or more persons.

“Harmful to minors” is defined as:

[T]hat quality of any description or representation, in

whatever form, of sexual conduct, sexual excitement, or

sado-masochistic abuse if, when taken as a whole, it:

(a) According to contemporary community standards

appeals to the prurient interest in sex;

(b) Portrays sexual conduct, sexual excitement or sado-

masochistic abuse; and

(c) Does not have serious literary, artistic, political or

scientific value.

“Sexual conduct” is defined as “any sexual act, normal or perverted, or

any act of masturbation, excretory functions, or lewd exhibition of the

genitals.” Anchorage Municipal Code § 8.50.020.

6 ARMSTRONG V. ASSELIN

pornographic appears to describe a nightmarish sexual

encounter between a man and some sort of female alien

creature who injures and kills people, or perhaps kills some

other sort of man-like creature.

About a week later, another couple approached the police

concerned about their own son, 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

gave Satan Burger to L.T. in the parking lot of a movie

theater. Armstrong also gave M.L. a web cam, knives, a bag,

and an inflatable alien doll. At one point, Armstrong told

M.L. to go to a secret location to pick up some musical

equipment and suggested that M.L. should take a weapon

with him to the secret location. After the investigation into

Armstrong began, he sent a series of messages to M.L.

demanding to know why M.L. had cut off contact, adding that

he would “try to defend myself and respond to whatever

bullshit the cops told you, but you, your brother, and your dad

won’t even let me.”

L.T. and M.L.’s fathers each called Armstrong

individually and told him not to contact their families any

more. After those conversations, Armstrong changed one of

his online screen names to “John [L] is a pedophile” (John

[L] is the father of M.L.) and continued to contact L.T.

despite the parental demand that he stop. Officer Asselin

obtained what are called Glass warrants to record these

conversations, as required under Alaska law.4

4

State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (requiring that a

warrant be obtained to record a conversation, unless all parties consent to

the recording).

ARMSTRONG V. ASSELIN 7

On November 21, 2005, a search warrant was issued on

the basis of an affidavit describing the above facts in great

detail. The warrant application also included a four-page

excerpt of Satan Burger, photocopies of the cover picture,

author statement, and copies of the online communication

between Armstrong and the boys. The warrant commanded5

a search of Armstrong’s home for evidence of disseminating

indecent material to minors and of stalking.6 Officer Asselin

simultaneously obtained an arrest warrant charging

Armstrong with disseminating indecent material to minors.

The state district judge who approved both warrants reviewed

the applications at the same time, did not request the full copy

of Satan Burger, and consulted the dissemination ordinance

prior to signing. The following day, after arresting

Armstrong, Officer Asselin obtained search warrants for

Armstrong’s car and his workplace desk, again to search for

evidence of stalking and dissemination of indecent material

to minors. Computers from Armstrong’s workplace and

home were seized during these searches. A preliminary

search of the computers revealed photographs of identified

victims “using a toilet,” a book about why men abuse

children, and videos of nude young males.

The municipal charge for disseminating indecent material

to minors was eventually dismissed by the municipal

prosecutor on March 10, 2006. Before returning the property

5

The Alaska search warrant form, like most, says to police officers,

“You are hereby commanded to search . . . .”

6

In Alaska, a person commits the crime of stalking in the second degree

by knowingly engaging in “repeated acts of nonconsensual contact

involving the victim or a family member,” that “recklessly places [them]

in fear of death or physical injury, or in fear of the death or physical injury

of a family member.” ALASKA STAT. § 11.41.270.

8 ARMSTRONG V. ASSELIN

that had been taken during the investigation, Officer Asselin

decided to look at it more thoroughly than he had.

Armstrong’s hard drives contained a photograph of two naked

prepubescent boys, one performing fellatio on the other.

Upon discovering the photograph, the police stopped looking

at the material on the drives until they got another search

warrant to examine all the computer media and other sources

for evidence of possession “and/or” distribution of child

pornography. After getting this latest warrant, the police

found at least 274 photographs of minors previously

identified as having been sexually exploited. Officer Asselin

then arrested Armstrong for possession of child pornography

on August 1, 2007. Three subsequent search warrants were

issued to search Armstrong’s Myspace account, residence,

and finally his Hotmail account for possession “and/or”

distribution of child pornography. The last two of these

warrants were issued to Officer Vandegriff.7 Each of the

affidavits in support of these warrants set out the facts just

described.

This second criminal case against Armstrong ended after

the Alaska Superior Court granted a motion to suppress all

the evidence. The court concluded that the Glass warrant to

record the telephone call between Armstrong and L.T.’s

father was not supported by probable cause to show that

Armstrong was disseminating indecent material to minors.

The Anchorage ordinance defines “indecent material” as that

which, “taken as a whole,” violates the indecency standards

and lacks serious literary, artistic, political or scientific value.

Officer Asselin gave the magistrate a little bit of the book and

7

Over the course of the investigation, officers Thomas, Rohwer,

Gilmour, and Parker interviewed the victims and assisted in both the

searches of Armstrong’s residence and property and his arrests.

ARMSTRONG V. ASSELIN 9

said in his affidavit that he had “reviewed portions of the

book” and found “one particular portion of the book [that]

explicitly describes a sexual encounter.” Since neither the

police officer nor the issuing magistrate had read the book as

a whole, the Alaska Superior Court ruled that there was no

probable cause to believe Satan Burger was indecent under

the ordinance, so there was no probable cause for the Glass

warrant. The Superior Court expressed concern that “search

warrants issued upon showings such as this would easily

implicate school teachers, public librarians and well

established booksellers for dissemination of indecent material

to minors.” Because all the subsequent warrants were “based

upon statements made during that initial [recorded telephone]

conversation” between Armstrong and the boy’s father,

evidence gathered under those warrants was likewise tainted

and the motion to suppress all evidence was granted.

Armstrong then sued Officer Asselin, five other police

officers, and the Municipality of Anchorage in federal district

court for violating his constitutional rights. He represented

himself. Defendants moved for summary judgment based on

qualified immunity. In his affidavit supporting summary

judgment, Officer Asselin said that the eleven warrants

obtained were sought by two police officers (himself and

Vandegriff), issued by five different judicial officials, and

that, at the outset of the investigation and as it proceeded, he

had conferred with three municipal prosecutors and then

when it became a felony charge, three state prosecutors.

None had “expressed concern regarding the validity of the

investigation.”

The district court dismissed Armstrong’s complaint

against the municipality and against the officers in their

official capacity, but granted him leave to file a third

10 ARMSTRONG V. ASSELIN

amended complaint against the officers in their individual

capacities. In the order, the district court told this pro se

litigant what needed to be set out in the complaint, if true, to

survive dismissal. Applying Saucier v. Katz8 and Zurcher v.

Stanford Daily,9 the district court concluded that a trier of fact

could reasonably conclude that a reasonable police officer

would know that his affidavits did not establish probable

cause that the book Satan Burger, “taken as a whole,” was

obscene, and therefore the officers were not entitled to

qualified immunity. Various subsidiary matters and cross

motions regarding sanctions and discovery were also

addressed, but are of no significance to this appeal. The

police officers appeal the interlocutory order denying the

motion for qualified immunity.10

ANALYSIS

The Alaska Superior Court’s suppression order was based

on the absence of probable cause supporting the initial Glass

warrant authorizing Asselin to record the conversation

between Armstrong and L.T.’s father. The Alaska

constitution requires that a warrant issue before

surreptitiously recording a conversation.11 Under federal

8

Saucier v. Katz, 533 U.S. 194, 201 (2001).

9

Zurcher v. Stanford Daily, 436 U.S. 547, 564–65 (1978).

10

This court has jurisdiction to review a district court’s denial of

qualified immunity under Mitchell v. Forsyth, 472 U.S. 511, 526–27

(1985). See also Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011).

11

State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (“Alaska’s

Constitution mandates that its people be free from invasions of privacy by

means of surreptitious monitoring of conversations.”).

ARMSTRONG V. ASSELIN 11

constitutional and statutory law, by contrast, no warrant is

necessary so long as one of the two parties to the

conversation consents to the recording.12 Since Armstrong’s

§ 1983 civil rights claim must rely on the deprivation of any

rights “secured by the Constitution and laws” of the United

States, violation of the Alaska constitution alone does not

establish a basis for a § 1983 lawsuit. The absence of a good

warrant for the recorded conversations with Armstrong is

immaterial to this federal case. Armstrong’s claims must

arise, if at all, from the subsequent search and arrest warrants.

We therefore focus on November 21, 2005, when Asselin

obtained a warrant to search Armstrong’s home, and the

arrests and searches on and after that date.

The claim against Asselin and the five other officers is

basically that any reasonable police officer should have

known that the search and arrest warrants violated the Fourth

Amendment. The core of the argument is that a short excerpt

of Satan Burger could not establish probable cause for a

search, because, as the Alaska Superior Court recognized, the

Anchorage ordinance requires that the work, “taken as a

whole,” must be “indecent.” The United States district court

came to the same conclusion, reasoning that the Anchorage

ordinance targeted obscene material and thus probable cause

lies only where “the material, taken as a whole” is obscene.

12

United States v. White, 401 U.S. 745 (1971); United States v. Caceres,

440 U.S. 741, 744 (1979) (“Neither the Constitution nor any Act of

Congress requires that official approval be secured before conversations

are overheard or recorded by Government agents with the consent of one

of the conversants.”); 18 U.S.C. § 2511(2)(c) (“It shall not be unlawful

under this chapter for a person acting under color of law to intercept a

wire, oral, or electronic communication, where such person is a party to

the communication or one of the parties to the communication has given

prior consent to such interception.”).

12 ARMSTRONG V. ASSELIN

Since a few pages could not establish obscenity, or

indecency, under the ordinance, a reasonable officer would

know that Asselin’s warrant applications failed to establish

probable cause.

We agree that the excerpt could not by itself establish

indecency or obscenity. To be “obscene,” Satan Burger

would have to satisfy the Supreme Court’s Miller standard:

(a) the average person, applying contemporary community

standards would find that the work, taken as a whole, appeals

to the prurient interest; (b) the work depicts or describes, in

a patently offensive way, sexual conduct specifically defined

by the applicable state law; and (c) the work, taken as a

whole, lacks serious literary, artistic, political, or scientific

value.13 Without examining the work as a whole, the standard

cannot be applied. The picture on the cover looks disgusting,

as though excretion is suggested, but cannot by itself, or with

the short excerpt, establish indecency. It is not clear that even

the excerpt “appeals to the prurient interest” any more than

a description of disorders and anatomical defects of the

vagina found in medical treatises.

This case, though, is not an obscenity case, or a criminal

prosecution for obscenity or indecency, or an attempt to limit

publication or circulation of any material, including Satan

Burger. This is a civil lawsuit, primarily for money damages,

against police officers for obtaining and executing search and

13

Miller v. California, 413 U.S. 15, 24 (1973); accord United States v.

Schales, 546 F.3d 965, 970 (9th Cir. 2008). As Professor Kathleen

Sullivan has put it, the material has to “turn you on and gross you out” at

the same time. Jeffrey Rosen, THE NEW ATLANTIS, The End of Obscenity,

http://www.thenewatlantis.com/publications/the-end-of-obscenity (last

visited Sept. 10, 2013).

ARMSTRONG V. ASSELIN 13

arrest warrants.14 We need not determine whether Satan

Burger is “indecent” or “obscene,” because that does not

control whether Officer Asselin and his colleagues are

entitled to qualified immunity. We assume without deciding,

for purposes of this decision, that Satan Burger, taken as a

whole, is not obscene or indecent, and that giving the book to

a minor did not violate the Anchorage ordinance.

This assumption, however, does not control the qualified

immunity determination for two reasons. First, all that is

needed for a search or arrest warrant is probable cause, not

proof, that giving the material to a minor would amount to a

violation of the Anchorage ordinance.15 The cover

(portraying a bare buttocks squatting over a dinner plate) and

the few pages support a reasonable belief by a police officer

that the work as a whole portrayed excretory functions or

sexual conduct in a manner establishing violation of the

ordinance. Even if the book were, on a full reading, not

indecent, it would be too much to say that no reasonable

police officer could seek a search warrant directed at the

premises of the person who gave it to a minor until the police

officer had read every word of the book and evaluated its

14

Armstrong also seeks an injunction directing the return of his property

and information relating to the investigation of his property.

15

Illinois v. Gates, 462 U.S. 213, 271–72 (1983) (“But Aguilar and

Spinelli, like our other cases, do not require that certain guilt be

established before a warrant may properly be issued. Only the probability,

and not a prima facie showing, of criminal activity is the standard of

probable cause.”) (internal quotation marks and citations omitted); accord

United States v. Brobst, 558 F.3d 982, 997 (9th Cir. 2009) (“Probable

cause requires more than bare suspicion but need not be based on evidence

sufficient to support a conviction, nor even a showing that the officer’s

belief is more likely true than false.”) (internal quotation marks and

citations omitted).

14 ARMSTRONG V. ASSELIN

literary value as a whole. A police officer may be entitled to

qualified immunity even for a search and arrest based on

invalid warrants if he has a “reasonable belief that the warrant

was supported by probable cause.”16 That low standard might

be satisfied without reading the book in its entirety, even

though the obscenity and municipal indecency standards

would not be satisfied for purposes of a criminal conviction.

Second, and most important to the outcome of this case,

the police officers subjected every step of their invasions of

Armstrong’s privacy to evaluation both by prosecutors and by

neutral judicial officials before they acted. Such prior review

of proposed searches and arrests supports qualified immunity,

shielding police officers from liability under the line of cases

reaffirmed and broadened most recently by Messerschmidt v.

Millender.17

Reversing our en banc decision, the Supreme Court held

in Messerschmidt that, even assuming a search warrant

should not have been issued, police officers who requested

and executed it are immune from suit except in “rare”

instances. Presentation to a superior officer and prosecutor,

and approval by a judicial officer before the warrant is issued,

“demonstrates that any error was not obvious.”18

The question in this case is not whether the

magistrate erred in believing there was

sufficient probable cause to support the scope

16

Messerschmidt, 132 S. Ct. at 1250.

17

Id.

18

Id. at 1250.

ARMSTRONG V. ASSELIN 15

of the warrant he issued. It is instead whether

the magistrate so obviously erred that any

reasonable officer would have recognized the

error. The occasions on which this standard

will be met may be rare, but so too are the

circumstances in which it will be appropriate

to impose personal liability on a lay officer in

the face of judicial approval of his actions.19

The Court rejected the notion that review by superiors or

magistrates was irrelevant to the controlling question of

whether “it is obvious that no reasonably competent officer

would have concluded that a warrant should issue.”20

“Indeed, a contrary conclusion would mean not only that [the

police officers] were plainly incompetent, but that their

supervisor, the deputy district attorney, and the magistrate

were as well.”21 Applying the Leon standard,22 the Court held

that, where the search or seizure is executed pursuant to a

warrant, the fact that a neutral magistrate issued the warrant

“is the clearest indication that the officers acted in an

objectively reasonable manner.”23 The warrant confers a

19

Id.

20

Id. at 1245.

21

Id. at 1249.

22

United States v. Leon, 468 U.S. 897 (1984).

23

Messerschmidt, 132 S. Ct. at 1245.

16 ARMSTRONG V. ASSELIN

“shield of immunity”24 lost only in “rare”25 circumstances,

even for mistakenly issued warrants. It is the “magistrate’s

responsibility to determine whether the officer’s allegations

establish probable cause”26—that is, a “fair probability” that

evidence of a crime will be found.27 Qualified immunity for

police officers does not even require that much, because as

Ashcroft v. al-Kidd held, the shield “protects all but the

plainly incompetent or those who knowingly violate the

law.”28

Under Messerschmidt, consulting with and getting

approval of one’s superiors and of a judicial officer operates

for an individual police officer something like liability

insurance, though, like liability insurance, there are

exceptions and exclusions to protection. One such exception

occurs when “it is obvious that no reasonably competent

officer would have concluded that a warrant should issue.”29

The Court illustrates this “obvious” standard by reference to

a warrant that authorized the search of a house for a

concealed two story house and to seize that house concealed

within the house to be searched—an obvious error that would

24

Id. at 1245.

25

Id. at 1250.

26

Id. at 1245 (quoting United States v. Leon, 468 U.S. 897, 921 (1984)).

27

Illinois v. Gates, 462 U.S. 213, 238 (1983).

28

Messerschmidt, 132 S. Ct. at 1244 (quoting Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2085 (2011)).

29

Id. at 1245.

ARMSTRONG V. ASSELIN 17

have been revealed by “just a simple glance.”30 The Court

uses the example to show that “obvious” means error that is

apparent from a “simple glance” at the face of the warrant

itself, not a defect that would “become apparent only upon a

close parsing of the warrant application.”31 Of course, such

patent absurdity is not the only way the police officer can lose

the shield of immunity. Leon establishes that another way the

“high” threshold for establishing an exception to immunity

can be crossed is if the officer lied to the issuing magistrate,32

or if the issuing magistrate did not perform his neutral and

detached function, serving instead as a mere “rubber stamp

for the police.”33

Leon holds that the exclusionary rule is a policy rule to

deter police misconduct, not to punish judicial error, so the

purpose of the exclusionary rule is not served by excluding

30

Id. at 1250 (discussing Groh v. Ramirez, 540 U.S. 551 (2004)).

31

Id. at 1250.

32

United States v. Leon, 468 U.S. 897, 914 (1984) (“the deference

accorded to a magistrate’s finding of probable cause does not preclude

inquiry into the knowing or reckless falsity of the affidavit on which that

determination was based”). In his brief to this court, Armstrong suggests

that Asselin and the other officers made material misrepresentations and

omissions when seeking the warrants. These arguments are without

support in the record so we do not address the misrepresentation exception

to immunity.

33

Id. (“the courts must also insist that the magistrate purport to perform

his neutral and detached function and not serve merely as a rubber stamp

for the police”) (internal quotation marks omitted).

18 ARMSTRONG V. ASSELIN

evidence obtained on a warrant mistakenly issued.34

Likewise, the Messerschmidt “shield of immunity” applies to

damages awards against individual police officers who obtain

and execute warrants.35 The “shield” of qualified immunity

gives police an incentive to submit their proposed search or

seizure to a neutral judicial officer rather than raiding homes

and invading privacy on their own. Once a neutral magistrate

approves of the search or seizure, “an officer cannot be

expected to question the magistrate’s probable-cause

determination or his judgment that the form of the warrant is

technically sufficient.”36 Messerschmidt holds that “the fact

that a neutral magistrate has issued a warrant is the clearest

indication that the officers acted in an objectively reasonable

manner.”37 Search and arrest warrants, typically and in this

case, say to the police “you are commanded,” not “you may,”

search or arrest.

Since Messerschmidt came down, we have identified

“rare” exceptions, at least in the context of motions to

suppress in criminal cases. We held in United States v. Grant

that evidence should have been suppressed where the

affidavit established only the most tenuous and remote

connection between the evidence sought and the place to be

34

Id. at 921 (“Penalizing the officer for the magistrate’s error, rather

than his own, cannot logically contribute to the deterrence of Fourth

Amendment violations.”).

35

See Owen v. City of Independence, Mo., 445 U.S. 622, 651 (1980)

(stating that the purposes of § 1983 actions are compensation and

deterrence).

36

Leon, 468 U.S. at 921.

37

Messerschmidt, 132 S. Ct. at 1245.

ARMSTRONG V. ASSELIN 19

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

or prosecutor.38 The rare exception to the shield applied

where there was not even a “colorable argument” and the

affidavit set out no “plausible connection” between the place

to be searched and objects to be seized and the criminal

investigation.39 In United States v. Underwood, we upheld

suppression where a “bare-bones” affidavit contained nothing

but “foundationless expert opinion and conclusory

allegations,” and lacked any recitation of “underlying facts so

that the issuing judge can draw his or her own reasonable

inferences and conclusions.”40 Most important, the officer

“did not have a supervisor or anyone else review, let alone

approve, his affidavit.”41 Because both these cases must be

distinguished on the contents of the affidavits and the lack of

review by superior officers or prosecutors, we need not

determine whether, after Messerschmidt, falling outside Leon

necessarily means the police officer lacks qualified immunity

from suit.42

This case is more sensitive than many, because it grows

out of the distribution of a book. As the district court and the

Alaska Superior Court recognized, overly aggressive use of

38

United States v. Grant, 682 F.3d 827 (9th Cir. 2012).

39

Id. at 841.

40

United States v. Underwood, 725 F.3d 1076, 1081–82 (9th Cir. 2013).

The mandate has not, as of this writing, issued in Underwood.

41

Id. at 1087–88.

42

Although falling within Leon necessarily means that the police officer

does enjoy qualified immunity. United States v. Needham, 718 F.3d 1190,

1194 (9th Cir. 2013).

20 ARMSTRONG V. ASSELIN

the Anchorage municipal ordinance could indeed threaten

school teachers, librarians, and bookstores, if a police officer

could merely excerpt the apparently sexual or excretory

references from a book to justify searches and arrests.

Zurcher v. Stanford Daily establishes that warrants may issue

even to search a newspaper office for evidence of crimes by

third parties, but “where the materials sought to be seized

may be protected by the First Amendment, the requirements

of the Fourth Amendment must be applied with scrupulous

exactitude.”43 “[W]here seizure is sought of allegedly

obscene materials, the judgment of the arresting officer alone

is insufficient to justify issuance of a search warrant” and the

probable cause determination “must afford an opportunity for

the judicial officer to focus searchingly on the question of

obscenity.”44 We assume for purposes of this decision that

the affidavits in this case were insufficient under Zurcher

because the cover picture and the four pages of text that the

police officers submitted to the judicial officials were not

sufficient for the judicial officials to “focus searchingly” on

the question of whether Satan Burger, as a whole, was

indecent or obscene. We do not suggest and need not address

whether Zurcher affects child pornography searches.

Even if Zurcher does bear on searches such as the one at

issue, it cannot resolve this case for two reasons. First,

Zurcher does not speak to the qualified immunity shield, and

Messerschmidt holds that the shield ordinarily applies even to

43

Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (internal

quotation marks omitted).

44

Id. at 565 (internal quotation marks omitted).

ARMSTRONG V. ASSELIN 21

a mistakenly issued warrant.45 Zurcher speaks to the review

a judicial officer must perform before issuing a warrant, not

to what an officer must set out in his warrant application in

order to preserve qualified immunity. 46 Under

Messerschmidt, approval by superiors, prosecutors, and a

judge almost guarantees the honest police officer’s claim to

qualified immunity.47 Officers Asselin and Vandegriff

consulted with six prosecutors and obtained warrants from

five judicial officials. As Messerschmidt holds, we would

have to treat all eleven prosecutors and judges as “plainly

incompetent” to deny Officer Asselin and the other officers

qualified immunity.

Second, the officers in this case were not searching for or

seizing Satan Burger. They already had the book. The

affidavits focused upon the repeated contacts between an

older man and underage boys despite parental requests that he

leave their sons alone, his giving of gifts to the boys, his

suggestion to a boy that he carry a weapon when he retrieved

his gifts, and meeting with the boys in secret. The searches

were for evidence of disseminating indecent material,

stalking the boys, and eventually possession of child

pornography, not for the book. The police officers,

prosecutors, and judicial officials were not “plainly

incompetent” in concluding that there was a fair probability

that the searches would turn up evidence of stalking and

45

Messerschmidt, 132 S. Ct. at 1245 (“where a magistrate acts

mistakenly in issuing a warrant but within the range of professional

competence of a magistrate, the officer who requested the warrant cannot

be held liable”).

46

Zurcher, 436 U.S. at 565.

47

Messerschmidt, 132 S. Ct. at 1245, 1249.

22 ARMSTRONG V. ASSELIN

dissemination of indecent material to minors. The subsequent

search and arrest warrants were supported by even greater

evidence of probable cause, including pictures of the victims

urinating, and the photograph of prepubescent boys

performing fellatio. Those photographs did indeed provide

a fair probability that the search would reveal evidence of

possession of child pornography on Armstrong’s computers,

and thus Officer Vandegriff, the officer who applied for the

last two warrants, is protected by qualified immunity.48

Under Messerschmidt, we must reverse. Officer Asselin

and the five other officers demonstrated their entitlement to

the Messerschmidt “shield of immunity” from suit. The

claims against them ought to have been dismissed.49

REVERSED and REMANDED for dismissal.

48

As to the remaining four officers, Thomas, Rohwer, Gilmour, and

Parker, Armstrong argued in his motion opposing summary judgment that

they “knew” they were violating his Fourth Amendment rights. But

Armstrong failed to produce any evidence supporting these bare

conclusions. The district court should have granted the motion for

summary judgment as to these officers.

49

In his pro se brief, Armstrong makes various other arguments, such as

that the location where he worked was outside the municipal boundaries,

but these arguments lack merit or do not bear on the qualified immunity

issue.