United States District Court, W.D. Washington
ORDER DENYING MOTION FOR PRELIMINARY
L. ROBART United States District Judge.
the court is Plaintiff David Zaitzeff s motion for a
preliminary injunction. (Mot. (Dkt. #14).) Mr. Zaitzeff seeks
to enjoin Defendants City of Seattle ("the City")
and King County Prosecutor Dan Satterberg (collectively,
"Defendants") from enforcing j Chapter 12A.14 of
the Seattle Municipal Code ("SMC"), which
proscribes certain uses of certain types of weapons.
See SMC ch. 12A.14. The City opposes Mr. Zaitzeff s
motion (Resp. (Dkt. # 20).) Mr. Satterberg has not filed a
response. (See Dkt.) The court has reviewed the
parties' filings in support of and in opposition to the
motion, the relevant portions of the record, and the
applicable law. Considering itself fully advised,
court DENIES Mr. Zaitzeff s motion.
action arises out of Mr. Zaitzeff s desire to carry a katana,
nunchucks, a fixed-blade knife, or a spring-assisted opening
knife at multiple street fairs and other public events in the
Seattle area. (See Am. Compl. (Dkt. # 5)
¶¶ 8-46; Mot. at 1; see also 1st Zaitzeff
Aff. (Dkt. # 15) at 2-5 (describing several instances in 2016
in which Mr. Zaitzeff openly carried a knife without
incident); 2d Zaitzeff Aff. (Dkt. # 19) at 2-3 (identifying a
subsequent encounter with Seattle police when Mr. Zaitzeff
was "wearing a knife in a sheath held on a
lanyward/necklace [sic] type item").) He alleges that
Chapter 12A.14 of the SMC and RCW 9.41.250 prohibit him from
such action in violation of his Second Amendment rights.
(See, e.g., Am. Compl. ¶¶ 101-43.) Mr.
Zaitzeff therefore sues Defendants to have those laws
declared unconstitutional. (See generally id.)
the University District Street Fair occurs on May 20-21,
2017, Mr. Zaitzeff seeks to preliminarily enjoin Defendants
from enforcing chapter 12A.14 of the SMC. (See
Mot. at 1-3, 5-6.) He also references several subsequent
street fairs and similar neighborhood events that he hopes to
attend. (See, e.g., Am. Compl. ¶ 86.) His
motion for a preliminary injunction is now before the court.
obtain a preliminary injunction relief, Mr. Zaitzeff must
establish that (1) he is likely to succeed on the merits, (2)
he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in his
favor, and (4) an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). Preliminary injunctive relief is also
"appropriate when a plaintiff demonstrates that serious
questions going to the merits were raised and the balance of
hardships tips sharply in the plaintiffs favor, "
provided the plaintiff also demonstrates that irreparable
harm is likely and that the injunction is in the public
interest. All. for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134-35 (9th Cir. 2011).
Mr. Zaitzeff s Motion
Zaitzeff's motion-fails to address injunctive relief and
warrants denial on that basis alone. (See generally
Mot.) However, the court has independently reviewed the
motion and the related submissions. (See 1st Zaitzeff
Aff.; 2d Zaitzeff Aff.) Based on that review, the court
concludes that Mr. Zaitzeff fails satisfy the Winter
and Cottrell standards and denies his motion.
minimum, Mr. Zaitzeff must raise "serious questions
going to the merits" of his claim. See
Cottrell, 632 F.3d at 1134-35. Instead, he bases his
claim on a legally unsupported reading of the Second
Amendment and related precedent. (See Am. Compl.
¶¶ 66-76, 101-58; Mot. at 3.) Contrary to Mr.
Zaitzeff s expansive reading of District of Columbia v.
Heller, that case expressly limits the Second Amendment
to "certain types of weapons, " 554 U.S. at 623,
and acknowledges that the right to bear arms, like the First
Amendment's protection of free speech, is "not
unlimited, " id. at 595.
Zaitzeff has neither demonstrated that Chapter 12A.14 of the
SMC burdens his Second Amendment rights, as historically
understood, nor shown that the City's interest in public
safety is insufficient to justify any attendant Second
Amendment burden. See Silvester v. Harris, 843 F.3d
816, 820-22 (9th Cir. 2016) (synthesizing this two-step
inquiry based on the Ninth Circuit's post-Heller
case law). Instead, he excerpts language from
Heller and related opinions and omits important
context that diminishes the likelihood of his success on the
merits. (See, e.g., Mot. at 5; Am. Compl.
¶¶ 104-05; see also Mot. at-3-(expressly of
Caetano v. Massachusetts, - U.S. -, 136 S.Ct. 1027,
1027 (2016), a per curiam opinion relating to stun guns).) At
best, Mr. Zaitzeff s claim stretches the bounds of Second
Amendment jurisprudence regarding the definition of
"arms." (See Am. Compl. ¶¶
101-59 (discussing the various weapons Mr. Zaitzeff seeks to
carry and their historical use).) However, even assuming his
weapons constitute arms, he makes no showing that the
city's ordinance is likely to fail Second Amendment
scrutiny. See Silvester, 843 F.3d at 821-22. Based
on these numerous apparent flaws in the merits of Mr.
Zaitzeff s claims, the court concludes that he has not shown
serious questions going to the merits of the claim. See
Cottrell, 632 F.3d at 1134-35.
related reasons, the court concludes that Mr. Zaitzeff fails
to demonstrate the balance of equities tip in his favor or
that an injunction is in the public interest. See Drakes
Bay Oyster Co. v. Jewell, 1M F.3d 1073, 1092 (9th Cir.
2014) (citing Nken v. Holder,556 U.S. 418, 435
(2009)) (reasoning that when the government is a party, the
balance of equities and public interest factors merge).
Chapter 12A. 14 serves a public safety interest. See
SMC § 12A.14. Absent a showing that raises serious