                    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           Submission Withdrawn August 3, 2011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.
