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Zaitzeff v. City of Seattle

United States District Court, W.D. Washington

May 16, 2017

DAVID ZAITZEFF, Plaintiff,
v.
CITY OF SEATTLE, et al, Defendants.

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before 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, [1] the court DENIES Mr. Zaitzeff s motion.

         II. BACKGROUND

         This 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.)

         Because 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.[2] (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. (See Mot.)

         III. ANALYSIS

         A. Legal Standard

         To 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).

         B. Mr. Zaitzeff s Motion

         Mr 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.[3] (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.

         At a 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.

         Mr. 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).[4] 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.

         For 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 questions ...


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