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Zaitzeff v. City of Seattle

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

September 26, 2019





         Plaintiff David Zaitzeff proceeds pro se in this 42 U.S.C. § 1983 civil rights matter brought against defendant City of Seattle. Plaintiff raises a constitutional challenge to Seattle Municipal Code (SMC) provisions associated with the use and possession of weapons in public places. (Dkt. 7, ¶¶ 79-80.) The City of Seattle now moves for summary judgment. (Dkts. 14 & 19.) Plaintiff opposes the motion. (Dkts. 16 & 20.) The Court, having reviewed the motion, all filings submitted in response and reply, and the remainder of the record, finds defendant’s motion for summary judgment should be GRANTED and this case DISMISSED.


         Prior to the current matter, plaintiff twice brought lawsuits in this Court against the City of Seattle and associated with his desire to carry and/or wear various weapons, including a sword called a “katana, ” in public. (See Dkt. 15, ¶1 and Dkts. 1 & 7.) The Court dismissed both cases for lack of standing given that none of the laws addressed in the lawsuits had been enforced against plaintiff and he could not plead an actual, imminent, or impending injury. See Zaitzeff v. City of Seattle, No. 16-0244-BAT (Dkts. 42-43 (dismissal without prejudice), aff’d Dkt. 47 (Ninth Circuit Court of Appeals Cause No. 16-35955)), and No. 17-0184-MJP (Dkts. 52-53 (dismissal with prejudice). In the second case, the Court rejected an attempt to utilize events occurring in August and November 2017, after the filing of the February 2017 lawsuit, to provide for standing. See id.

         Plaintiff filed his current complaint on May 3, 2018. (Dkt. 1.) The filing followed a May 2, 2018 incident at Greenlake Park in which Seattle police officers seized plaintiff’s katana and issued a Park Trespass Warning/Exclusion pursuant to SMC 12A.14.080. (Dkt. 15, Ex. 1.) Under that provision, it “is unlawful for a person to . . . [k]nowingly carry concealed or unconcealed on such person any dangerous knife, or carry concealed on such person any deadly weapon other than a firearm[.]” SMC 12A.14.080(B).

         The City of Seattle prosecuted plaintiff for violation of SMC 12A.14.080(B) in Seattle Municipal Court Case Number 637319. (Dkt. 15, ¶3 and Ex. 1 at 1.) In those proceedings, plaintiff brought a motion to dismiss the charges brought against him due to the as-applied unconstitutionality of SMC 12A.14.080. (Id., Ex. 2.) He argued the statute was unconstitutional under the Second Amendment to the U.S. Constitution. The municipal court denied the motion to dismiss, concluding the statute does not violate the Second Amendment. (Id., Ex. 3 and Ex. 4 at 10.) On January 2, 2019, the municipal court issued a final judgment and sentence, finding plaintiff guilty of the unlawful use of weapons under SMC 12A.14.080(B) and issuing a suspended sentence of 364 days in jail and a $5000.00 fine. (Id., Ex. 5.) The conditions of the sentence include, inter alia, that plaintiff possess no weapons and forfeit weapons, with the forfeiture of his sword stayed pending appeal. (Id. at 2.) Plaintiff appealed and King County Superior Court affirmed on August 19, 2019. See Seattle v. Zaitzeff, No. 19-1-02010-1 (found at Plaintiff filed a notice of discretionary review with the Washington Court of Appeals on September 6, 2019 and that matter remains pending. See Cause No. 804367 (found at

         In his Amended Complaint, plaintiff describes both the May 2, 2018 incident and prior events. (Dkt. 7.) In February 2017, plaintiff informed a Seattle police officer of his desire to bring a katana and “spring-assisted opening knife” to festivals or fairs in the city and was told he might receive a criminal citation if he did so. (Id., ¶¶11-19.) In August 2017, plaintiff was stopped by Seattle police officers while wearing his katana and alleges he was told he would be arrested if he did so again. (Id., ¶¶20-27.) In November 2017, Seattle police officers seized plaintiff’s katana. (Id., ¶¶32-34.)

         Plaintiff states he frequently goes to Seattle for festivals, fairs, and a wide variety of other purposes and intends to continue that practice. (Id., ¶¶5-8, 40.) He asserts prior injuries he sustained in attacks and assaults made upon him “are less likely to have occurred but for the Seattle law which forbids [him] from carrying his katana or other similar weapons.” (Id., ¶42.) He expresses his desire “to possess and carry nearly all the weapons which are prohibited by SMC 12A.14.080 and [.]083” (id., ¶54), with the “exception of slungshot or sand club, ” which may not be possessed or carried pursuant to SMC 12A.14.080(A).

         Plaintiff seeks an order finding SMC 12.14.080, described above, and SMC 12.14.083 unconstitutional as to the weapons he desires to carry and forbidding seizure of his weapons. (Id., ¶79.)[1] SMC 12.14.083 states at subpart (A): “It is unlawful to knowingly carry or shoot any spring gun, air gun, sling or slingshot in, upon or onto any public place.” Plaintiff also seeks an order finding the May 2018 parks trespass warning/exclusion notice void and actions taken against him invalid; the return of his katanas and an apology; compensation associated with replacement of his katanas; an order forbidding further weapons legislation for fifteen years without the consent of the court and instructing defendant to consult with him in creating any new legislation; and $5.5 million dollars in damages. (Id., ¶¶79-80.)

         The City of Seattle asserts its entitlement to summary judgment in relation to SMC 12A.14.080 based on the principles of collateral estoppel and res judicata. (See Dkts. 14 & 19.) It argues plaintiff lacks standing to bring a challenge to SMC 12A.14.083. (See Dkt. 19 at 7-8.) Plaintiff asserts the finding of the Seattle Municipal Court is not binding on this court and that the court must consider the constitutional question raised de novo. (See Dkts. 7 & 20.) He otherwise rejects any bars to his suit or challenge to his standing. (Id.)


         Summary judgment is appropriate when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of showing the district court “there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. The moving party can carry this burden by producing affirmative evidence negating an essential element of the nonmovant’s case, or by establishing the nonmovant lacks the quantum of evidence needed to satisfy its burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the nonmoving party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 585-87.

         In supporting a factual position, a party must “cit[e] to particular parts of materials in the record . . .; or show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 585. “[T]he requirement is that there be no genuine issue of material fact. . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). ...

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