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Zaitzeff v. City of Seattle

United States District Court, W.D. Washington, Seattle

February 2, 2018

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

          ORDER ON MOTION TO DISMISS: LACK OF STANDING

          Marsha J. Pechman United States District Judge

         The Court has received and reviewed:

1. City of Seattle's Motion to Dismiss for Lack of Standing (Dkt. No. 43) and King County's Joinder (Dkt. No. 44);
2. Plaintiff's Affidavit re SMC 12A.14.080 for January 2018 (Dkt. No. 47) and Affidavit re RCW 9.41.250 for January 2018 (Dkt. No. 48);
3. City of Seattle's Reply in Support of Motion to Dismiss for Lack of Standing (Dkt. No. 50) and Dan Satterberg's Consolidated Reply to Plaintiff's Affidavits and in Support of City of Seattle's Motion to Dismiss (Dkt. No. 49); all attached declarations and exhibits; and relevant portions of the record, and rules as follows:

         IT IS ORDERED that the motion is GRANTED. Plaintiff's Amended Complaint is DISMISSED for lack of standing; as further amendment would not cure the complaint's defects, the dismissal shall be with prejudice.

         IT IS FURTHER ORDERED that the remaining pending motions in this matter are all STRICKEN as moot.

         Background

         This is the second lawsuit Plaintiff has pursued regarding the issues before the Court. Plaintiff's first lawsuit consisted of a facial challenge to the constitutionality of Seattle Municipal Code (“SMC”) 12A.14.080 and .083 and RCW 9.41.250, both concerned with restrictions on the carrying or possession of identified weapons. See Zaitzeff v. City of Seattle, et al., No. 2:16-CV-00244-BAT, 2016 WL 6084930 at *1-2 (W.D. Wash. Oct. 18. 2016); also Dkt. No. 5, Amended Complaint (“AC”), ¶¶ 1-2. Plaintiff's first lawsuit was dismissed without prejudice for lack of standing on the ground (among others) that the laws to which Plaintiff objected had not been enforced against him, thus he could not plead an actual, imminent or impending injury. Id. at *5-*6. That result has been upheld on appeal. See 9th Cir. No. 16-35955.

         The present litigation represents Plaintiff's attempt to establish standing with amended allegations. AC at ¶ 1. While the vast majority of his 30 pages of pleadings consist primarily of Plaintiff's opinions and conclusory legal statements, it does allege that Plaintiff “desires to possess and/or carry” any and all of the weapons restricted by SMC 12A.14.080 and .083 and RCW 9.41.250. AC at ¶ 112. He asserts that he has “new facts” which alter the analysis regarding his standing to bring this lawsuit, including allegations that he intended “to carry his katana and/or a fixed blade knife and/or a spring assisted opening knife at the U-district Street Fair” on May 20-21, 2017. AC at ¶ 13. Plaintiff indicates that he inquired of an SPD officer on February 7, 2017 concerning these intentions and was advised that he could be “cited for the illegal use of weapons” should he appear at the Street Fair carrying those items (and also asserts that he was similarly advised at the 2016 Street Fair). AC at ¶¶ 15-20, 24-25.

         An initial attempt to obtain a preliminary injunction prior to the 2017 Street Fair was rejected on the grounds that Plaintiff “ha[d] not shown any serious questions regarding the merits of his claim” and that “any injury [he] would face from enforcement of Chapter 12A.14 is speculative.” (Dkt. No. 21.) A visit to the 2017 Street Fair (openly carrying a fixed-blade knife) reportedly resulted in contact from officers of SPD but no arrests or citations. (See Dkt. No. 34, Kennedy Decl., Ex. A; an email from Plaintiff entitled “Summary of ‘knife' weekend.”)

         Plaintiff has since brought several additional motions, including a “Motion to Rule That [he] has Standing” (Dkt. No. 27), a motion for leave to amend his complaint again to allege an August encounter with SPD (Dkt. No. 39), and a motion for return of his katana (which was seized when he wore it to a political rally in November 2017; see Dkt. No. 38) and to further allege financial damages resulting from the seizure. All of those motions have been stayed pending a ruling on the present motion. (Dkt. No. 46.)

         Additionally, the parties have recently filed a Stipulated Motion for Continuance of Dispositive Motions Deadline and ...


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