Zaitzeff v. City of Seattle

• Court: District Court, W.D. Washington
• Decided: September 26, 2019
• Docket: 2:18-cv-00646
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 DAVID ZAITZEFF,

8 Plaintiff, CASE NO. C18-0646-MAT

9 v. ORDER GRANTING DEFENDANT’S 10 CITY OF SEATTLE, MOTION FOR SUMMARY JUDGMENT

11 Defendant,

13 INTRODUCTION

14 Plaintiff David Zaitzeff proceeds pro se in this 42 U.S.C. § 1983 civil rights matter brought 15 against defendant City of Seattle. Plaintiff raises a constitutional challenge to Seattle Municipal 16 Code (SMC) provisions associated with the use and possession of weapons in public places. (Dkt. 17 7, ¶¶ 79-80.) The City of Seattle now moves for summary judgment. (Dkts. 14 & 19.) Plaintiff 18 opposes the motion. (Dkts. 16 & 20.) The Court, having reviewed the motion, all filings submitted 19 in response and reply, and the remainder of the record, finds defendant’s motion for summary 20 judgment should be GRANTED and this case DISMISSED. 21 BACKGROUND 22 Prior to the current matter, plaintiff twice brought lawsuits in this Court against the City of 23 Seattle and associated with his desire to carry and/or wear various weapons, including a sword 1 called a “katana,” in public. (See Dkt. 15, ¶1 and Dkts. 1 & 7.) The Court dismissed both cases 2 for lack of standing given that none of the laws addressed in the lawsuits had been enforced against 3 plaintiff and he could not plead an actual, imminent, or impending injury. See Zaitzeff v. City of

4 Seattle, No. 16-0244-BAT (Dkts. 42-43 (dismissal without prejudice), aff’d Dkt. 47 (Ninth Circuit 5 Court of Appeals Cause No. 16-35955)), and No. 17-0184-MJP (Dkts. 52-53 (dismissal with 6 prejudice). In the second case, the Court rejected an attempt to utilize events occurring in August 7 and November 2017, after the filing of the February 2017 lawsuit, to provide for standing. See id. 8 Plaintiff filed his current complaint on May 3, 2018. (Dkt. 1.) The filing followed a May 9 2, 2018 incident at Greenlake Park in which Seattle police officers seized plaintiff’s katana and 10 issued a Park Trespass Warning/Exclusion pursuant to SMC 12A.14.080. (Dkt. 15, Ex. 1.) Under 11 that provision, it “is unlawful for a person to . . . [k]nowingly carry concealed or unconcealed on 12 such person any dangerous knife, or carry concealed on such person any deadly weapon other than 13 a firearm[.]” SMC 12A.14.080(B).

14 The City of Seattle prosecuted plaintiff for violation of SMC 12A.14.080(B) in Seattle 15 Municipal Court Case Number 637319. (Dkt. 15, ¶3 and Ex. 1 at 1.) In those proceedings, plaintiff 16 brought a motion to dismiss the charges brought against him due to the as-applied 17 unconstitutionality of SMC 12A.14.080. (Id., Ex. 2.) He argued the statute was unconstitutional 18 under the Second Amendment to the U.S. Constitution. The municipal court denied the motion to 19 dismiss, concluding the statute does not violate the Second Amendment. (Id., Ex. 3 and Ex. 4 at 20 10.) On January 2, 2019, the municipal court issued a final judgment and sentence, finding plaintiff 21 guilty of the unlawful use of weapons under SMC 12A.14.080(B) and issuing a suspended 22 sentence of 364 days in jail and a $5000.00 fine. (Id., Ex. 5.) The conditions of the sentence 23 include, inter alia, that plaintiff possess no weapons and forfeit weapons, with the forfeiture of his 1 sword stayed pending appeal. (Id. at 2.) Plaintiff appealed and King County Superior Court 2 affirmed on August 19, 2019. See Seattle v. Zaitzeff, No. 19-1-02010-1 (found at https://dja-prd- 3 ecexap1.kingcounty.gov). Plaintiff filed a notice of discretionary review with the Washington

4 Court of Appeals on September 6, 2019 and that matter remains pending. See Cause No. 804367 5 (found at https://dw.courts.wa.gov). 6 In his Amended Complaint, plaintiff describes both the May 2, 2018 incident and prior 7 events. (Dkt. 7.) In February 2017, plaintiff informed a Seattle police officer of his desire to bring 8 a katana and “spring-assisted opening knife” to festivals or fairs in the city and was told he might 9 receive a criminal citation if he did so. (Id., ¶¶11-19.) In August 2017, plaintiff was stopped by 10 Seattle police officers while wearing his katana and alleges he was told he would be arrested if he 11 did so again. (Id., ¶¶20-27.) In November 2017, Seattle police officers seized plaintiff’s katana. 12 (Id., ¶¶32-34.) 13 Plaintiff states he frequently goes to Seattle for festivals, fairs, and a wide variety of other

14 purposes and intends to continue that practice. (Id., ¶¶5-8, 40.) He asserts prior injuries he 15 sustained in attacks and assaults made upon him “are less likely to have occurred but for the Seattle 16 law which forbids [him] from carrying his katana or other similar weapons.” (Id., ¶42.) He 17 expresses his desire “to possess and carry nearly all the weapons which are prohibited by SMC 18 12A.14.080 and [.]083” (id., ¶54), with the “exception of slungshot or sand club,” which may not 19 be possessed or carried pursuant to SMC 12A.14.080(A). 20 Plaintiff seeks an order finding SMC 12.14.080, described above, and SMC 12.14.083 21 unconstitutional as to the weapons he desires to carry and forbidding seizure of his weapons. (Id., 22 ¶79.)1 SMC 12.14.083 states at subpart (A): “It is unlawful to knowingly carry or shoot any spring 23 1 Plaintiff’s Amended Complaint and responsive memorandum discusses Revised Code of Washington (RCW) 9.41.250, a provision identifying as a gross misdemeanor, inter alia, the possession of 1 gun, air gun, sling or slingshot in, upon or onto any public place.” Plaintiff also seeks an order 2 finding the May 2018 parks trespass warning/exclusion notice void and actions taken against him 3 invalid; the return of his katanas and an apology; compensation associated with replacement of his

4 katanas; an order forbidding further weapons legislation for fifteen years without the consent of 5 the court and instructing defendant to consult with him in creating any new legislation; and $5.5 6 million dollars in damages. (Id., ¶¶79-80.) 7 The City of Seattle asserts its entitlement to summary judgment in relation to SMC 8 12A.14.080 based on the principles of collateral estoppel and res judicata. (See Dkts. 14 & 19.) 9 It argues plaintiff lacks standing to bring a challenge to SMC 12A.14.083. (See Dkt. 19 at 7-8.) 10 Plaintiff asserts the finding of the Seattle Municipal Court is not binding on this court and that the 11 court must consider the constitutional question raised de novo. (See Dkts. 7 & 20.) He otherwise 12 rejects any bars to his suit or challenge to his standing. (Id.) 13 DISCUSSION

14 Summary judgment is appropriate when a “movant shows that there is no genuine dispute 15 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 16 56(a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails 17 to make a sufficient showing on an essential element of his case with respect to which he has the 18 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears 19 the initial burden of showing the district court “there is an absence of evidence to support the 20

21 “any instrument or weapon of the kind usually known as slung shot, sand club, or metal knuckles, or spring blade knife” and “[f]urtively carr[ying] with intent to conceal any dagger, dirk, pistol, or other dangerous 22 weapon.” However, plaintiff challenges the enforcement of and specifically seeks relief only in relation to SMC 12A.14.080 and .083. (See Dkt. 7 at 8-9, 18-19 and Dkt. 20 at 1.) He also names only the City of Seattle as defendant. The State of Washington is not a party. The Court, as such, does not find plaintiff’s 23 Amended Complaint to identify a viable defendant or to otherwise state a claim regarding RCW 9.41.250 and does not address any arguments raised in relation to that statute. 1 nonmoving party’s case.” Id. at 325. The moving party can carry this burden by producing 2 affirmative evidence negating an essential element of the nonmovant’s case, or by establishing the 3 nonmovant lacks the quantum of evidence needed to satisfy its burden of persuasion at trial.

4 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The 5 burden then shifts to the nonmoving party to establish a genuine issue of material fact. Matsushita 6 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all 7 reasonable inferences in favor of the nonmoving party. Id. at 585-87. 8 In supporting a factual position, a party must “cit[e] to particular parts of materials in the 9 record . . .; or show[] that the materials cited do not establish the absence or presence of a genuine 10 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. 11 Civ. P. 56(c)(1). The nonmoving party “must do more than simply show that there is some 12 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 585. “[T]he 13 requirement is that there be no genuine issue of material fact. . . . Only disputes over facts that

14 might affect the outcome of the suit under the governing law will properly preclude the entry of 15 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in 16 original). The central issue is “whether the evidence presents a sufficient disagreement to require 17 submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 18 Id. at 251-52. 19 The opposing party must present significant and probative evidence to support its claim or 20 defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). A 21 mere scintilla of evidence does not suffice to defeat summary judgment. Triton Energy Corp. v. 22 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Nor can the nonmoving party rely on 23 allegations in the complaint or unsupported conjecture or conclusory statements. Hernandez v. 1 Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 2 A. SMC 12A.14.080 3 The City of Seattle seeks dismissal of plaintiff’s challenge to SMC 12A.14.080 under the

4 doctrines of res judicata and collateral estoppel. The Court, for the reasons set forth below, agrees 5 plaintiff’s SMC 12A.14.080 claim is barred. 6 A federal action is governed by preclusion law. Exxon Mobil Corp. v. Saudi Basic Indus. 7 Corp., 544 U.S. 280, 293 (2005). Pursuant to the Full Faith and Credit Act, 28 U.S.C. § 1738, a 8 federal court must “‘give the same preclusive effect to a state-court judgment as another court of 9 that State would give.’” Id. (quoting Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 10 (1986)). “‘This statute has long been understood to encompass the doctrines of res judicata, or 11 claim preclusion, and collateral estoppel, or issue preclusion.’” Gupta v. Thai Airways Int’l, LTD, 12 487 F.3d 759, 765 (9th Cir. 2007) (quoting San Remo Hotel, L.P. v. City and County of San 13 Francisco, Cal., 545 U.S. 323, 336 (2005)).

14 With claim preclusion, successive litigation of a claim is foreclosed by a final judgment, 15 whether or not the same issues are raised in the attempted relitigation. Taylor v. Sturgell, 553 U.S. 16 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). “Issue preclusion, 17 in contrast, bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a 18 valid court determination essential to the prior judgment,’ even if the issue recurs in the context of 19 a different claim.” Id. (quoting New Hampshire, 532 U.S. at 748-49). In precluding relitigation 20 of matters a party has had a full and fair opportunity to litigate, the preclusion doctrines “protect 21 against ‘the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and 22 foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.’” Id. 23 (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)). In determining the preclusive 1 effect of a state court judgment, a federal court must look to the preclusion laws of that state. 2 Gupta, 487 F.3d at 765 (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 3 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980)).

4 Pursuant to Washington law, res judicata “prohibits the relitigation of claims and issues 5 that were litigated, or could have been litigated, in a prior action.” Pederson v. Potter, 103 Wn. 6 App. 62, 11 P.3d 833, 835 (2000) (citing Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 887 P.2d 7 898, 900 (1995) (en banc)). It means “‘a plaintiff is not allowed to recast his claim under a different 8 theory and sue again. . . . All issues which might have been raised and determined are precluded.’” 9 Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 867 (9th Cir. 1995) (quoting Shoemaker 10 v. Bremerton, 109 Wn.2d 504, 745 P.2d 858, 860 (1987) (en banc)). Specifically, res judicata bars 11 a subsequent action where the prior judgment is a final judgment on the merits, and the prior and 12 subsequent actions have identical (1) persons and parties, (2) causes of action, (3) subject matter, 13 and (4) quality of persons for or against whom the claim is made. Pederson, 11 P.3d at 835. See

14 also Afoa v. Port of Seattle, 191 Wn.2d 110, 421 P.3d 903, 914 (2018) (citing Loveridge, 125 15 Wn.2d at 763). In considering whether two actions are identical, Washington courts consider: 16 “(1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 17 (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same 18 right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” 19

20 Rains v. State, 100 Wn.2d 660, 674 P.2d 165, 168 (1983) (en banc) (quoting Costantini v. Trans 21 World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982)). 22 Application of collateral estoppel under Washington law requires proof of the following: 23 (1) the issue in the prior and current action is identical, (2) the prior action ended in a final judgment on the merits, (3) the party against 1 whom collateral estoppel is asserted was a party or in privity with a party to the prior action, and (4) the application of collateral estoppel 2 would not work an injustice.

3 Afoa, 421 P.3d at 914 (citing Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 326, 4 96 P.3d 957 (2004)). Collateral estoppel “prevents a party from relitigating issues that have been 5 raised and litigated by the party in a prior proceeding.” Clark v. Baines, 150 Wn.2d 905, 84 P.3d 6 245, 249 (2004). All four of the above-described elements must be satisfied for collateral estoppel 7 to apply. Id. 8 This case involves the same issue addressed in the municipal court proceeding, that is, 9 whether SMC 12A.14.080 violates the Second Amendment, an issue that was resolved against 10 plaintiff, followed by a final judgment finding plaintiff guilty. The mere fact the municipal court 11 decision is pending appeal does not alter the finality of the judgment or otherwise preclude 12 application of either collateral estoppel or res judicata. City of Des Moines v. Personal Property 13 Identified as $81, 231 in U.S. Currency, 87 Wash. App. 689, 943 P.2d 669, 702-03 (1997); Lejeune 14 v. Clallam Cy., 64 Wash. App. 257, 266, 823 P.2d 1144 (1992). Plaintiff was a party to the prior 15 action and application of collateral estoppel would not work an injustice given that plaintiff was 16 provided and took the opportunity to litigate the issue in municipal court. Plaintiff’s current claim 17 that SMC 12A.14.080 violates the Second Amendment is therefore barred by collateral estoppel. 18 Res judicata also applies. This matter involves the same parties as in the municipal court 19 proceeding and the same rights and facts. As in the motion to dismiss the criminal charge, plaintiff 20 here alleges the City of Seattle implicated his rights under the Second Amendment through his 21 prosecution and the confiscation of his katana. Given the serious nature of a criminal proceeding, 22 it is reasonable to assume plaintiff would present substantially the same evidence in this civil action 23 as he did in municipal court. Plaintiff’s criminal conviction, following rejection of his motion to 1 dismiss the criminal charge, would necessarily be impaired by a second action raising the same 2 constitutional claim in this court as raised in the motion to dismiss. Plaintiff’s challenge to SMC 3 12A.14.080 is, accordingly, barred by res judicata. See, e.g., Ewing v. Superior Court of Cal., 90

4 F. Supp. 3d 1067, 1075-77 (S.D. Cal. 2015) (section 1983 claims alleging violation of First and 5 Fourteenth Amendment rights barred by res judicata where plaintiff had previously litigated and 6 lost a motion to dismiss a criminal complaint in state court arguing his communications were 7 protected under the First Amendment). See also Hutcherson v. Lehtin, 485 F.2d 567, 568-69 (9th 8 Cir. 1973) (“Appellants cannot subsequently raise the same constitutional issue in a separate action 9 in federal court involving the same parties, even though it is brought as a civil rights action, after 10 an adverse determination by a state court. The principles of res judicata preclude such a course of 11 action, leaving appellants to their state appellate remedies.”) 12 Plaintiff’s action faces an additional bar through Heck v. Humphrey, 512 U.S. 477 (1994). 13 A civil rights complaint under 42 U.S.C. § 1983 cannot proceed when “a judgment in favor of the

14 plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 15 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence 16 has already been invalidated.” Id. at 487. “Heck, in other words, says that if a criminal conviction 17 arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior 18 for which section 1983 damages are sought, the 1983 action must be dismissed.” Smithart v. 19 Towery, 79 F.3d 951, 952 (9th Cir. 1996). The § 1983 action “is barred (absent prior invalidation)- 20 -no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 21 (state conduct leading to conviction or internal prison proceedings)--if success in that action would 22 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 23 U.S. 74, 81-82 (2005). 1 Plaintiff here seeks damages and other relief in this § 1983 civil rights matter raising a 2 constitutional challenge to SMC 12A.14.080. It is undisputed that, while currently on appeal, his 3 conviction for violation of that provision has not been invalidated or impugned in any respect. A

4 ruling in this Court in plaintiff’s favor would necessarily invalidate his conviction. Plaintiff’s 5 claim is therefore not cognizable under § 1983 and subject to dismissal under Heck. See, e.g., 6 Ewing, 90 F. Supp. 3d at 1073-78 (plaintiff’s § 1983 claims barred by res judicata, collateral 7 estoppel, and the Heck doctrine). See also Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th 8 Cir. 1995) (noting a claim barred by Heck may be dismissed sua sponte). 9 The Court, finally, finds no merit to plaintiff’s argument the municipal court ruling does 10 not serve as a bar to a broader challenge to SMC 12A.14.080 beyond a sword/katana and that “each 11 weapon must be evaluated individually.” (Dkt. 20 at 5.) Here, as in municipal court, plaintiff 12 argues SMC 12A.14.080 violates the Second Amendment. A ruling from this Court on that same 13 question, as applied to any of the weapons at issue in SMC 12A.14.080, is precluded by collateral

14 estoppel, res judicata, and Heck for the reasons discussed above. 15 B. SMC 12A.14.083 16 The City of Seattle argues plaintiff’s challenge to SMC 12A.14.083 should be dismissed 17 based on a lack of standing. (Dkt. 19.) The Court agrees. 18 Article III of the U.S. Constitution limits federal courts to “adjudicating actual ‘cases’ or 19 ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). The requirement for a plaintiff to 20 have standing is a core component of a valid case or controversy. Id.; Lujan v. Defenders of 21 Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing” requires 22 satisfaction of three elements: injury in fact, causation, and a likelihood a favorable decision will 23 redress the injury. Lujan, 504 U.S. at 560-61. A plaintiff satisfies those elements by showing: 1 (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 2 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely 3 speculative, that the injury will be redressed by a favorable decision.

4 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The 5 requirement of “imminence” ensures an alleged injury “is not too speculative for Article III 6 purposes – that the injury is ‘certainly impending[.]’” Lujan, 504 U.S. at 564 n.2 (quoting 7 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); some quotation marks omitted). An allegation 8 of “possible future injury” does not suffice. Whitmore, 495 U.S. at 158. The party seeking to 9 invoke federal jurisdiction bears the burden of establishing standing. Lujan, 504 U.S. at 561. 10 SMC 12A.14.083(A) proscribes carrying or shooting a spring gun, air gun, sling or 11 slingshot in a public place. Plaintiff’s amended complaint addresses incidents associated with a 12 katana or similar items accounted for in SMC 12A.14.080. (See Dkt. 7, ¶¶ 5-36.) It does not 13 identify any incident associated with a weapon listed in SMC 12A.14.083. There is, in other 14 words, no allegation SMC 12A.14.083 has been enforced against plaintiff. Plaintiff’s claim 15 challenging this provision is therefore, as in his prior lawsuits, properly characterized as a 16 “preenforcement challenge.” Such a challenge requires satisfaction of the three elements of 17 standing: injury in fact, causation, and redressability. 18 To establish an injury in fact in the context of a preenforcement challenge to a criminal 19 statute, a plaintiff must demonstrate “‘an intention to engage in a course of conduct arguably 20 affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat 21 of prosecution thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting 22 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). While “an actual arrest, 23 prosecution, or other enforcement action is not a prerequisite to challenging” a law on 1 constitutional grounds, id. at 158, “neither the mere existence of a proscriptive statute nor a 2 generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Thomas v. 3 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000).

4 In evaluating the genuineness of an alleged threat of prosecution, a court looks to “whether 5 the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the 6 prosecuting authorities have communicated a specific warning or threat to initiate proceedings, 7 and the history of past prosecution or enforcement under the challenged statute.” Thomas, 220 8 F.3d at 1139 (citing San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th 9 Cir. 1996)). A concrete plan “requires something more than a hypothetical intent to violate the 10 law.” Id. “A general intent to violate a statute at some unknown date in the future does not rise to 11 the level of an articulated, concrete plan.” Id. Also, the “threat of enforcement must at least be 12 ‘credible,’ not simply ‘imaginary or speculative.’” Id. at 1140. Accord United Farm Workers, 442 13 U.S. at 298 (credible threat of prosecution cannot rest on “‘imaginary or speculative’” fears)

14 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)). 15 In his Amended Complaint, plaintiff avers his intention to come to Seattle and his desire 16 “to possess and carry nearly all the weapons” prohibited by both SMC 12A.14.080 and .083. (Dkt. 17 7, ¶54.) In response to defendant’s motion, plaintiff asserts he “has possessed and will surely 18 possess in the future nunchucks, throwing stars, airsoft pistols and kubotan which may well fall 19 within the definition of metal knuckles,” has “at times lived in, worked in and engaged in walks 20 and other recreation in the city of Seattle, at times with such weapons on him[,]” and intends in 21 the future to wear, possess, and/or carry an airsoft pistol, nunchucks and kubotan in public in 22 Seattle. (Dkt. 20 at 4, 13.) He reasons that, having prosecuted him for wearing a katana, the City 23 of Seattle would necessarily be willing to prosecute him in relation to other weapons, giving rise 1 to a credible risk of injury. (See id.) 2 Plaintiff does not demonstrate a credible threat of prosecution in relation to SMC 3 12A.04.083. His allegations and arguments reflect that he has been warned about wearing or

4 carrying a sword/katana and spring-assisted opening knife and, on two occasions, faced 5 consequences when he did so; including confiscation of his katana in one instance and confiscation 6 and a criminal citation in another instance. He provides no such facts in relation to the weapons 7 at issue in SMC 12A.04.083. In fact, while asserting his past and future ownership of at least one 8 SMC 12A.04.083 weapon, an airsoft pistol, plaintiff suggests he does not currently possess any 9 such weapons. He also concedes he has on prior occasions possessed and/or carried an airsoft 10 pistol in Seattle without receiving a warning or facing any consequences. 11 Plaintiff, at best, sets forth facts associated with SMC 12A.04.080 to support an injury in 12 fact in relation to SMC 12A.04.083. The Court finds this insufficient to show an actual, imminent, 13 or certainly impending injury associated with SMC 12A.04.083. Plaintiff sets forth a generalized

14 threat of prosecution based on the existence of a criminal code provision and his intention to violate 15 that provision at some unidentified and uncertain point in the future. This mere possibility of 16 future injury does not establish a credible threat of prosecution. See, e.g., San Diego County Gun 17 Rights Comm., 98 F.3d at 1127-28 (mere assertion plaintiffs “wish[ed] and intend[ed]” to engage 18 in prohibited activities, without specifying any particular time or date on which they intended to 19 do so, did not amount to a concrete plan or otherwise support the actual or imminent injury required 20 for standing; plaintiffs conceded they had not been specifically threatened and did not identify 21 even a general threat of prosecution; finding establishment of “at most a possibility of their 22 eventual prosecution . . . clearly insufficient to establish a ‘case or controversy.’”); Colorado 23 Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 550-51 (10th Cir. 2016) (plaintiff based threat of 1 prosecution under statute prohibiting possession of large-capacity magazines (LCMs), despite 2 exception for individuals who already possessed them, on assertion the LCMs she already 3 possessed would “‘[e]ventually’” wear out and “it would be ‘possible’” to lose them; finding

4 “[s]uch ‘some day’ speculations” insufficient to establish an injury-in-fact). Cf. Sturgeon v. 5 Masica, 768 F.3d 1066, 1071-72 (9th Cir. 2014) (plaintiff satisfied injury-in-fact requirement 6 when he intended to use a hovercraft in a preserve where a regulation prohibited such use, 7 contacted relevant agencies regarding the applicability and enforcement of the regulation to that 8 intended use, received a verbal warning from the agencies not to use the hovercraft, and the 9 agencies indicated the hovercraft would be removed and plaintiff might be subject to criminal 10 liability if he operated a hovercraft in the preserve), vacated and remanded on other grounds sub 11 nom. Sturgeon v. Frost, ___ U.S. ___, 136 S. Ct. 1061, 194 L. Ed. 2d 108 (2016). 12 Plaintiff, in sum, does not demonstrate an injury in fact in relation to SMC 12A.04.083. 13 The Court thus finds an absence of standing to bring a claim relating to that provision in this Court.

14 CONCLUSION 15 The City of Seattle’s Motion for Summary Judgment (Dkt. 14; see also Dkt. 19) is 16 GRANTED and this matter is DISMISSED for the reasons set forth above. The dismissal is with 17 prejudice as to the claim challenging SMC 12A.14.080 and without prejudice as to SMC 18 12A.14.083. 19 DATED this 26th day of September, 2019.

20 A 21 Mary Alice Theiler 22 United States Magistrate Judge 23