argument against the city re SMC 12A.14.080 and 083

  1. INTRODUCTION AND RELIEF REQUESTED

            COMES NOW the plaintiff David Zaitzeff seeking both a declaration of standing and a declaration and injunction against the enforcement of SMC 12A.14.080 and .083.

            Zaitzeff in this brief argues against some frivolous arguments made by the city of Seattle in its brief, and also, incorporates some of the arguments and evidence provided in the brief filed for his appeal in the criminal case.  However, because Zaitzeff may make additions and deletions to that content, no claim is made directly or indirectly than any lawyer is responsible for any of this brief.  However, at least some legal dicta will have proper names and numberings on them!

            Zaitzeff alleges that the law of the city of Seattle which forbids, among other things, the possession and/or public carry of the following by the city is, unconstitutional: throwing stars, nunchucks AKA chako sticks, switchblades, “dangerous knives” AKA knives with a fixed blade or knives with a blade longer than 3.5 inches and metal knuckles, airsoft pistols and airsoft rifles and other devices and weapons.

            The SMC contains definitions and these definitions clarify the meaning of the phrase dangerous knives and also indicate that chako sticks are what are otherwise and commonly referred to as nunchucks.  These definitions may be found in SMC 12A.14.010.  The definitions also give the parameters for the meaning of “dangerous knife,” or “dangerous knives.”

            The 2nd amendment extends prima facie to all bearable instruments.  See Heller at 582.   Broadly the Court held “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms…” Heller. at 582. Each bearable instrument must be evaluated individually, but by the same criteria laid out in the Heller & D.C. decision and reaffirmed and reapplied in the Caetano & Massachusetts decision.

            Zaitzeff admits that hand grenades, Molotov cocktails and weaponized anthrax spores are not a suitable and reasonable means of personal self-defense for the civilian population at this time and for the foreseeable future.  These items are weapons but they are likely to fall into the category that the Supreme court regards as exceptionally dangerous and unusual and therefore not subject to the ordinary protection of the 2nd amendment.

            The general public has likewise tolerated the general prohibition on the creation of new machine guns by or for the civilian population.

            However, airsoft pistols, metal knuckles and swords and knives are all substantially less dangerous than firearms, arms which are, at least most generally, constitutionally protected.

            Zaitzeff has brought a constitutional challenge to these various parts of the SMC in 2016, and then in 2017, and then in 2018.

            The city has defrauded the courts and zaitzeff by falsely claiming that he lacked standing to bring a constitutional challenge to these parts of the weapons law in 2016 and in 2017.

            The falsity of the city’s previous claims of lack of standing is proven by their recent prosecution of zaitzeff for having broken SMC 12A.14.080 for wearing a sheathed sword.

            Zaitzeff and any reasonable person could reasonably have foreseen the likelihood and substantial risk to zaitzeff of prosecution by the city of Zaitzeff, but such likelihood and risk was denied by the city.  As a result of the successful fraud upon the federal court, the cases in 2016 and the next case in 2017 were both dismissed due to alleged lack of standing to sue.

            Now, the city alleges that zaitzeff cannot have this case heard on the merits due to the frivolous decision of Seattle Municipal court judge on the constitutionality of SMC 12A.14.080 as applied to zaitzeff wearing a sword on May 2, 2019.

            Please note the following in response to the city.

            The challenge in the municipal court was a challenge to the law as applied to the conduct of zaitzeff on May 2, 2019 wearing that particular sword on that day and in that place, and not re possessing, selling, purchasing or carrying nunchucks, airsoft pistols or throwing stars or the other similar things.

            The city has claimed in its motion to dismiss that the parties and issue are the same in this case as in the case heard and ruled upon by Seattle judges Mary Lynch and Kimi Kondo.

            They are not because the issues in this lawsuit are far broader.  This suit includes the question of the constitutionality of the ban of switchblades, airsoft pistols, throwing stars, nunchucks and kubotan and/or so-called metal knuckles.  Whether or not the city has the constitutional right to ban such weapons was not discussed or argued upon in any hearing in the criminal case against zaitzeff for bearing a sheathed sword on May 2.  Moreover, a substantial portion of the argument made by the city in its most recent appeal brief and also the words of the ruling of the judge seem to be specifically limited to or focused upon the May 2, 2018 walk of zaitzeff at the park.  The court is surely aware that the city of Seattle has seized 2 of zaitzeff’s swords, one each on two different occasions.

            Moreover, zaitzeff has possessed and will surely possess in the future nunchucks, throwing stars, airsoft pistols and kubotan which may well fall within the definition of metal knuckles, and zaitzeff has at times lived in, worked in and engaged in walks and other recreation in the city of Seattle, at times with such weapons on him.

            Standing is created merely by a credible risk of prosecution and not only by an arrest or prosecution. The city is surely willing to prosecute me for wearing a sheathed sword; how much more would they be to prosecute plaintiff for having metal knuckles or throwing stars or an airsoft pistol?

            The ruling of the Seattle Municipal court judge therefore most likely and most reasonably only be taken, if it is taken, as being applied to zaitzeff’s sword, and not to nunchucks and throwing stars and an airsoft pistol.  For the lawyer of Zaitzeff in the criminal case neither briefed nor argued the against the law re nunchucks, airsofts, throwing stars, knuckles, etc. 

            Most of the challenge of zaitzeff to SMC 12A.14.080 and 083 therefore remain, even if it were to be supposed, wrongly, by this federal court, that it lacks the power to rule on the topic of zaitzeff bearing the sword while going for a walk.

            The reason is that each weapon must be evaluated individually.  It is conceivable that a court might find that airsofts are not constitutionally protected to have or bear, but that swords are constitutionally protected to have and to bear.  A court might find condemn both but allow knuckles and throwing stars.  Correct?

            The same principles apply to various weapons but their application may result in different conclusions, as the principles of the constitution are applied differently.  Therefore, a decision re wearing a sword may be different from carrying nunchucks peacefully and that might be different from wearing an airsoft or carrying throwing stars or having a switchblade.

            Zaitzeff and the general public admit that hand grenades and anthrax spores are not constitutionally protected and that results from applying the principles of interpretation to the Constitution.  However, those same principles, applied individually, weapon type by weapon type, will indicate that nunchucks, throwing stars, knives, swords, airsoft pistols, switchblades and metal knuckles are constitutionally protected to have and to bear.

            The city of Seattle has quoted some principles of law as they relate and are stated for Washington courts.

            Those principles, created by Washington courts for Wa. State courts, do not govern this court.  This is a federal court with federal obligations to uphold and defend the federal constitution of the United States and not to honor local judges views.  No state law has the power to interfere with that right and responsibility held by this court.  Only Congressional laws and statutes or higher rulings of federal courts have the power to restrict the power and jurisdiction of this federal court, on this matter of fundamental constitutional rights, protected by the FEDERAL constitution, which is the Supreme law of the land, as the court surely knows. 

            In any given case, in terms of evaluating the law, the court makes a determination of the law de novo.

            The Constitution is the Supreme law of the land and it supersedes any principles, rulings, laws or principles of Washington law created for Washington state courts.  Neither this federal court nor any other federal court is obliged to regard any ruling by a state court or city court as to the constitutionality of a law as dispositive.

            In fact, the honorable judge Mary Theiler, as a member of the federal judiciary, has sworn an oath to protect American constitutional rights, including those of the plaintiff.  Has she not?

            The Constitution says this in Article VI.  The US Constitution is the supreme law of the land and it takes precedence over all laws, treaties and obligations or interpretations thereof by any state or local courts, and by any laws, statutes rulings and determinations of state law by state courts, which are, not infrequently and often frivolously, contrary to the US Constitution.

            Even if it were true that the principles of res judicata were to be generally applied, the federal courts and their power to rule would have to be an exception to the principle, in at least some instances.  Otherwise, no case could ever be heard by the U.S. Supreme Court, upon appeal from a state court of appeals or upon appeal from a court such as the Washington state Supreme court.  There have to be some exceptions to the principles enunciated by the city, or, no law in Washington state, after a criminal conviction, could ever be reviewed by any federal court, for determination of the constitutionality of the law or the constitutionality of the application of the law.

            But since laws in Washington state are at times reviewed by federal courts upon appeal, there obviously are some exceptions, and in a case of constitutionality, in terms of the federal constitution, zaitzeff has standing.

            The city claims that the ruling in the case in Municipal court was a “final judgment.”

            It seems to be in fact not final, of course, because that case, is on appeal.

            What is more is that a federal court in New York has ruled that nunchucks are constitutionally protected.  That was case number 03-cv-786 in the Eastern District of New York. The parties were Plaintiff James Maloney v Defendant Madeline Singas, District Attorney of Nassau county and the case was heard and ruled upon by Honorable Pamela Chen of the federal judiciary, a judiciary that is at least more usually honorable than that of some states.  A person may find the ruling at this location on the internet:

https://news.guns.com/wp-content/uploads/2018/12/nunchaku-decision.pdf

            Now, obviously, you can’t have one federal court, such as the one in New York, ruling that nunchucks are in fact protected by the federal constitution, while at the same time be claiming that a municipal court’s oral and frivolous ruling, in Seattle no less, on the topic of bearing the sword, no less, settles the matter re nunchucks for the city of Seattle! ~ : )

            Which one is it?  Is the plaintiff required to bring a 4th case specifically on the topic of nunchucks?  And a fifth case on the topic of throwing stars and a sixth on switchblades and a 7th on the topic of airsoft pistols?  Must the plaintiff zaitzeff fill the federal court docket with eight different cases in order to get justice and have the cases heard on their merits and be consistent with what we already know to be the rulings of all the federal courts, including the New York court?

            The 2nd amendment extends, prima facie, to all bearable instruments.  The city of Seattle does not believe it and is attempting and has attempted to prevent the federal courts from hearing the matter.

            Municipal court judges do not have the power to tell the federal judges how to interpret the constitution.  If anything, one should conclude that if the frivolous decision of Seattle Municipal judge Mary Lynch was about the law SMC 12A.14.080 per se and if it includes the nunchucks or chako sticks, then, the ruling of Mary Lynch and of Kimi Kondo was completely forbidden and stopped by res judicata because of the decision of the federal court in New York! 

            Is that not right?

            Either the decision of Seattle judges Mary Lynch and Kimi Kondo do not extend to the part of the law that forbids having nunchucks.  Or, if that decision does extend to nunchucks, that decision is contrary to the federal court’s decision.

            If the frivolous and careless decisions of the Seattle judges Mary Lynch and Kondo do not extend to nunchucks AKA chako sticks, then, zaitzeff still has complete standing to sue to have nunchucks found constitutionally protected to have and to carry in Seattle.  Correct?

            If the decision of the dishonorable judges Lynch and Kondo does include the nunchucks, then, isn’t that a bit of a problem?  A municipal court has ruled contrary to a federal court on a matter of federal constitutional law?  Really?  Whoopsie!! Are the Seattle judges so careless as to contradict the federal courts in interpreting and applying federal constitutional protections?  But that seems to be exactly what they have done, if we go by the dicta of Lorraine Lewis Phillips!  No?  No???

            Is that not going to cause a problem?

            Since it is not clear if the decision of Lynch and Kondo included the part of the law prohibiting the carry of throwing stars and nunchucks to be constitutional or not, may the plaintiff sweetly suggest that the court request additional briefing from the city to determine just how far the ruling re constitutionality of SMC 12A.14.080 goes?  Did Mary Lynch’s oral and frivolous decision also cover nunchucks AKA chako sticks?  If not, does it include carrying a switchblade or a knife or a shorter sword or doing so in other contexts than the park?  These are also knives which zaitzeff desires to possess and carry in Seattle, and which the Seattle law forbids.  But they are not quite the same as a sword.  So just how far does the ruling/determination/decision re constitutionality of Lynch and Kondo go?  Does it go to nunchucks and throwing stars and to switchblades?  Does it go to just swords?   What about daggers?  What about switchblades and throwing stars?  Just to swords on the day in question in the park in question and in the clothing zaitzeff was wearing on that day?

            If it includes the nunchucks, the Seattle courts have obviously gone contrary to the federal courts.   Isn’t that a no-no, legally speaking, in matters of constitutional rights?

            The nunchucks are the same for me and for James Maloney of New York.

            We can’t have nunchucks be constitutionally protected by the federal constitution for one person and forbidden to others who are similarly situated.  That is not how constitutional rights work.  Weapons which are protected in New York are also protected by the same federal constitution and its accompanying decisions in Washington state.  Are they not?

             If nunchucks are protected in New York they are or must become protected in Washington state and in the city of Seattle, despite the lies, deceit and evasions of the city of Seattle.

            Please note that the city writes in its arguments that zaitzeff’s original cause of action arose out of criminal proceeding.  That is plainly false, except that it was done partly in response to a wrongful seizure of zaitzeff’s property—done on two separate occasions, without due and just cause and without any concomitant charge at the time–and compelling the city of Seattle to return it. It is an easy matter to see that this suit was filed months before any criminal charge was brought and it was filed after the city of Seattle had wrongly seized two of plaintiff’s swords.

            Additionally, a very similar case brought by zaitzeff in 2016 and a 2nd similar case in 2017 and those cases brought by zaitzeff on the same topics did not at all arise out of a criminal proceeding.  They were rejected on the basis of lack of standing, a lack which, if it ever existed at all, was remedied by the tortious conduct of the city in seizing the swords, plural, of zaitzeff, on 2 separate occasions.

            That the city tries to claim that the criminal case was zaitzeff’s original cause of action, when in fact zaitzeff had brought 3 successive suits in federal court on these topics, beginning more than 2 years ago, and two of them were done long before the city had either seized a sword of zaitzeff or brought a criminal charge shows only the mendacity of the city of Seattle in all these proceedings.

            The res judicata claims appear to plaintiff zaitzeff to rest solely upon quotations from Washington state law or statute or rulings.  They do not govern this court in its responsibility to protect the civil and constitutional rights of all Americans.

            What would be necessary is one or more authoritative federal court rulings forbidding federal courts from resolving the constitutionality of laws whose constitutionality has been previously decided by state courts.  Perhaps such rulings or dicta or principles exist.  Maybe not!

            The position of the city of Seattle leads to the absurd result that because he has been convicted of wearing a sheathed sword, he cannot challenge the constitutionality of the local law forbidding people from making, selling, purchasing, possessing or carrying nunchucks, though those are actions which have been ruled protected in federal court in New York.

            How would my conviction on the matter of wearing a sheathed sword deprive me of the right to sue for the ability to have some nunchucks in the city of Seattle, when in fact, the federal courts have begun to recognize that possession, etc of nunchucks is constitutionally protected?

            Now, however, it is possible that this court will again turn a blind eye to the deprivation of civil rights of the plaintiff.

            OK. 

            I say the following.  Pete Holmes, Richard Greene, Lorraine Phillips and Marcie Richardson and Judge Mary Lynch and Judge Kimi Kondo, ret., have contempt for the constitutional rights of all Americans.

            I pray and others pray that God show them the right way.  I pray and others pray that God either show them the right way or make their lives a living hell until they repent or they abandon their posts in either the judiciary or in the prosecutor’s office, where they work injustice after injustice.

            Long ago the Greeks believed that Zeus would come from heaven to enforce justice on earth when man and man’s government could not or would not enforce justice.  Perhaps Jehovah does the same thing.

            Let God arise and his enemies be scattered. Let God arise and his enemies be scattered.  Oh, let God arise and his enemies be scattered.  Let God, let God arise!

God shall arise, his enemies shall be scattered;
    and those who hate him shall flee before him!
As smoke is driven away, so you shall drive them away;
    as wax melts before fire,
    so the wicked shall perish before God!

            Psalm 68:1,2.

            The curse of the Lord is upon the house of the wicked and those who dwell in it!  Let God arise and protect American civil rights!   Let the curse of God be upon Pete Holmes, Richard Greene, attorney Richardson, Lorraine Lewis Phillips, Judge Mary Lynch and Judge Kimi Kondo, till they each repent or are removed from power!

            So, my dear federal court, I would guess that your word, if you deny standing to me in this matter, will not be the last word.  I supposed I could be wrong.  We can always try and find out.  Lets see if God is sleepy or if God cares about this issue.  Lets see if God wishes to pour out some fire from heaven on the altar here on earth and consume it.  How about that?

             God may awake and decide he does not like seeing Americans trampled, prosecuted and their property seized for exercising their rights. 

            Now, I think that Pete Holmes, Richard Greene and Lorraine Phillips would prefer to hear from the federal court than to wait and see if God actually wishes to have a conversation with them about their contempt of constitutional rights.  Am I wrong?

            Maybe I am wrong.  We can always, surely, try praying and see.  Perhaps I will do some research on the flesh-eating bacteria and pray that some of it arrive in Seattle, if Holmes and his henchmen such as Lorraine Lewis Phillips continue in their contempt for constitutional rights.

            God show Holmes, Greene, Richardson, Lorraine Lewis Phillips, Mary Lynch and Kimi Kondo the right way and the truth and stop their contempt for constitutional rights!

            By the way, if it be alleged that the questions of nunchucks and metal knuckles and throwing stars or airsoft pistols be held to require even additional standing from zaitzeff, zaitzeff says that it does not require an arrest or charge, but any injure or the credible risk of such injury to zaitzeff to establish standing.

            Zaitzeff has worn an airsoft pistol in public in Seattle and intends to do so in the future.

            Zaitzeff has possessed nunchucks and intends to do so in the future.  Zaitzeff has possessed or carried kubotan in Seattle which might fall in the definition of metal knuckles as defined by Seattle and he intends to do so in the future.

            Therefore, since the city has proven that it will enforce its weapons laws by seizure and/or by prosecution, there is a credible risk of injury to zaitzeff by means of smc 12a.14.083 as well as the various other parts of .080.

            ARGUMENT re knives and swords

            The unconstitutionality of Seattle’s weapon ban

SMC 12A.14.080(B) bans the carrying, concealed or unconcealed, of a “dangerous knife.” A “dangerous knife” is defined under the code as “any fixed-blade knife and any other knife having a blade more than 3 1/2 inches in length.” SMC 12A.14.010.

 The exemptions are few and do not save the ordinance under Second Amendment analysis. The ordinance does not apply to licensed hunters or fishermen actively engaging in that craft; or when the knife is used in the activity related to an occupation; or while the knife is in a secure wrapper or tool box and the person is travelling to or from a place of purchase, place of repair, or in or travelling to or from a place of business or abode. SMC 12A.14.100. There is no exemption if the knife is carried for the purposes of self-defense.

No other jurisdiction in Washington has such a restrictive ban on knives, and for good reason: it is unconstitutional. Under modern Second Amendment jurisprudence, the de facto categorical ban Seattle employs runs directly afoul of the constitutional right to carry an arm for self-defense.

The seminal cases of modern Second Amendment law are the United States Supreme Court cases of Heller and Caetano. In Washington the recent Evans case provides direct guidance for the facts of this case.   

  1. Heller

In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the U.S. Supreme Court addressed a challenged to D.C.’s regulation on handguns. That regulation required firearms in the home to be kept “unloaded and disassembled or bound by a trigger lock or similar device.” Id. This law was challenged as a violation of the Second Amendment.  

The Court agreed. Broadly the Court held “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms…” Id. at 582.  Please note that these words place the burden upon the city to prove that any given weapon is not constitutionally protected.  It is not a burden upon the plaintiff, but upon the city, a burden that they have not even attempted to bear.

The Court further held that the Second Amendment at its core codified a pre-existing right to self-defense: (“[W]e find that [the Second Amendment] guarantee[s] the individual right to possess and carry weapons in case of confrontation.”). Id. at 592. (“[T]he inherent right of self-defense has been central to the Second Amendment right.” Id. at 628.

The Heller court held that the definition of “arms” was the same in the 18th century as today. Id. at 581. And that this definition was “weapons of offense, or armour of defense.” Id. In further describing the weapons protected by the right, the Court extended it to those weapons “in common use at the time” of the founding for the lawful purpose of self-defense, as opposed to “dangerous and unusual weapons.”  Id. at 625-27 (interpreting United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1209 (1939).

The Court further held: “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”  Heller, 554 U.S. at 624-25, quoting State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254).

The Court also addressed the sphere of the protections of the Second Amendment. The Court held the need for defense was “most acute” in the home, in defense of “self, family, and property.” Id. at 628. The Court also held that laws prohibiting weapons in “sensitive areas” like schools or government buildings remained permissible regulation. Id. at 626.

From the above, a few statements may be made. First, the Second Amendment functions as codifying the individual’s right to enjoy self-defense and to bear an arm for self-defense. Its protections encompass arms as traditional weapons, not merely those utilized in conjunction with military service.

Secondly Heller referenced, and later cases made more explicit, the rights enshrined in the Second Amendment pervade public spaces, and do not exist solely in one’s home. Rather the Court noted Second Amendment protections were greatest in one’s home, and least applicable in “sensitive areas,” where presumably a ban might be, in some cases, enacted. A public thoroughfare, as in this case, would thus fall between one’s home and a sensitive area and a ban is impermissible and constitutionally unsound.

  1. Caetano

In Caetano v. Massachusetts, 136 S.Ct. 1027, 194 L.Ed.2d, 9984 USLW 4133 (2016), the Court reviewed a conviction of unlawfully possessing a weapon, specifically a stun gun, carried outside the home. The Court reversed; finding unanimously per curiam the ordinance at issue was unconstitutional under modern Second Amendment jurisprudence, especially Heller. Caetano v. Massachusetts, 136 S.Ct. 1027, 194 L.Ed.2d 99, 84 USLW 4133 (2016).

In a strident concurrence, Justice Alito delved into the misapplication of the Heller decision by Massachusetts. The Court emphasized the Second Amendment protects an individual right to “keep and bear arms” vindicating the “basic right of individual self-defense.” Id. at 1028 (internal quotations and citations omitted) (Alito, J. concurring).

The concurrence also noted the Second Amendment does not merely protect arms in existence in the 18th century, Id. at 1029, or those suitable by use for the military. Id. at 2031. Thus if stun guns exist under Second Amendment protection, weapons that did exist in the 18th century or were commonly used for the military are also similarly protected.

Under Heller and Caetano, a sword does qualify as an arm demanding of Second Amendment protection. While the City did not concede a sword was a protected arm at the motion hearing’s oral argument in the criminal case, the City did agree, “swords historically have been weapons and have been used in warfare.”

Caetano stands for the proposition the State may not infringe upon the individual’s right to bear arms, even outside the home; and that a citizen’s choice of self-defense cannot be prohibited unless the arm is both extremely and unreasonably dangerous and unusual for the context of defense. The Court noted Second Amendment analysis was required on individual arms other than the quintessential firearm because otherwise “[A] State would be free to ban all weapons except handguns…” Caetano, 136 S.Ct. at 1032. Of course, Seattle’s ordinance does exactly that.

Swords are inherently less lethal than guns. For example, only 13.1% of murders use knives, compared to 67.5% using firearms. FBI, Crimes in the United States 2010, Tables 11, 9. Knife wounds also carry a third of the mortality rate of gunshot wounds. Civilian Penetrating Wounds to the Abdomen. Wilson and Sherm, 153 Annals of Surgery 639-640 (1961).

While not relevant for this Court’s legal analysis, Mr. Zaitzeff is at various times a caretaker for his mother with dementia. He does not wish to purchase a gun because he does not want his mother to accidently kill herself or kill someone else. This concern is less acute with a sword. Under Caetano, it is impermissible to require Mr. Zaitzeff to employ a more dangerous option, i.e. a firearm, to utilize his right of self-defense. “Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.” Caetano, 136 S.Ct.. at 1033.

  1. Evans

The Washington Supreme Court reviewed a challenge to the ordinance at bar in Evans. Seattle v. Evans, 184 Wn.2d. 856, 366 P.3d 906 (2015). While this case came out before Caetano, it is consistent with that holding on the issue of traditional arms. Indeed the language and citations of Evans directly support’s the appellant’s position in this case, specifically that the ordinance is unconstitutional as applied to Mr. Zaitzeff.

In Evans the defendant was charged under the Seattle knife-ban ordinance because he carried a fixed-blade paring (kitchen) knife for self-defense. The defendant challenged the ordinance as applied to him, arguing Heller and subsequent Second Amendment case law rendered Seattle’s knife ban unconstitutional. Id. at 861-62.

In a slim 5-4 majority, the Evans court held the defendant’s specific conduct was not entitled to constitutional protection because his knife, a paring knife, was a kitchen tool and not an “arm.” Id. at 861.

The Evans court reviewed an earlier case addressing the ordinance at issue, Montana. City of Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996). This case is often cited by the City for the broad proposition that the charging ordinance passes constitutional muster, but the holding is not so broad.

In Montana, the defendant again carried a small fixed paring knife and was again charged under the Seattle weapons ordinance. Id. at 599. The Montana court, again in slim majority, upheld the conviction because it held constitutional protection “[E]xtends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure another person.” Id. at 591.

While Montana contains dicta about the interest in a municipality in promoting safety, that interest must bow to constitutional strictures. Seattle cannot enact a blanket ban against firearms, alleged safety concerns notwithstanding. Likewise it cannot ban traditional arms like swords. “Both the federal and state constitutions require us to give protection to certain weapons that have been designed and commonly used for self-defense.” Evans, 184 Wn.2d at 872 (citing Heller, 554 U.S. at 581-82).

The Evans court went a step further than Montana and defined “arms” for constitutional analysis. Evans held “[T]he right to bear arms protects instruments that are designed as weapons traditionally or commonly used by law abiding citizens for the lawful purpose of self-defense.” Id. at 869 (emphasis added).

In its review of Montana, the Evans court drew from the concurrence by Justice Alexander regarding, e.g. swords as weapons. See Evans, 184 Wn.2d at 870 (“[H]istorically, certain knives, for example, bowie knives and swords, have been commonly used for self-defense and, therefore, may be considered arms under article I, section 27 of the Oregon Constitution.”) Montana, 129 Wn.2d at 601, fn.9 (Alexander, J. concurring) (citing State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984) (emphasis added)[1].

Evans expressly contradicts any City argument that the ordinance can be upheld against the facts of this case:

“We are mindful of—and expressly renew—the concern expressed in Justice Alexander’s concurring opinion in Montana: many knives banned under the Seattle ordinance may be arms deserving constitutional protection…The problem that the concurrence identified was that “the ordinance exempts from its scope the carrying of knives while engaged in hunting, fishing, the culinary arts, and other lawful occupations, activities not protected by the constitution, yet does not exempt from its scope the carrying of arms for the purpose recognized in the statute constitution, self defense…

In a different case under appropriate facts, the ordinance’s “broad prohibition” on carrying arms for purposes of self-defense may well be constitutionally infirm. We reserve judgment on this issue for an appropriate case.”

Evans, 184 Wn.2d at 864 (fn.6) (internal quotations and citations omitted) (emphasis added).

Argument re other weapons

The other weapons in question shall be likely found to be constitutionally

protected.  It is the burden of the city and not upon zaitzeff to prove that they are

 not protected.  The federal court in New York has found that nunchucks are

weapons which are protected by the 2nd Amendment.

Plaintiff zaitzeff awaits further orders requiring briefing, if such briefing,

argument

or evidence be required on the topic of any given weapon specified in SMC

12A.14.  Until then, the presumption of the 2nd Amendment applies to all such

weapons.

From I Kings 18:

22 Then Elijah said to the people, “I, even I only, am left a prophet of the Lord, but Baal’s prophets are 450 men.

23 Let two bulls be given to us, and let them choose one bull for themselves and cut it in pieces and lay it on the wood, but put no fire to it. And I will prepare the other bull and lay it on the wood and put no fire to it. 

24 And you call upon the name of your god, and I will call upon the name of the Lord, and the God who answers by fire, he is God.” And all the people answered, “It is well spoken.” 

25 Then Elijah said to the prophets of Baal, “Choose for yourselves one bull and prepare it first, for you are many, and call upon the name of your god, but put no fire to it.”

26 And they took the bull that was given them, and they prepared it and called upon the name of Baal from morning until noon, saying, “O Baal, answer us!” But there was no voice, and no one answered. And they limped around the altar that they had made. 

27 And at noon Elijah mocked them, saying, “Cry aloud, for he is a god. Either he is musing, or he is relieving himself, or he is on a journey, or perhaps he is asleep and must be awakened.” 

28 And they cried aloud and cut themselves after their custom with swords and lances, until the blood gushed out upon them. 

29 And as midday passed, they raved on until the time of the offering of the oblation, but there was no voice. No one answered; no one paid attention. . .

38 Then the fire of the Lord fell and consumed the burnt offering and the wood and the stones and the dust, and licked up the water that was in the trench. 

39 And when all the people saw it, they fell on their faces and said, “The Lord, he is God; the Lord, he is God.”

Forgive me if you find my prayers or thoughts re Holmes, Mary

Lynch, Kimi Kondo, attn Richardson, Lorraine Lewis Phillips and

Richard Greene a bit harsh. 

Plaintiff Zaitzeff believes that these men and women need correction. 

May the court correct them or I am happy to pray that Jehovah arise

and provide them the correction which they seem so sorely to lack. 

Let God arise and his enemies be scattered!

Let God arise and his enemies be scattered!

Oh let God arise and his enemies be scattered!

Let God, let God arise!

Let God or the court show them the right way!

Let God or the court show them the right way!

Let God show them the right way or let them perish at the blast of Jehovah!

Let God show them the right way or let them depart from their places in injury, shame and disease, or whatever it takes!

Oh let God arise and his enemies be scattered!  God show the wicked the right way or remove them from the judiciary and the prosecutor’s office!  Amen!

By the way, given the current contempt by the office of Pete Holmes

for constitutional rights, I have prepared a little photo of Holmes in

fire.  If we have what I assume to be the usual silence of the federal

courts on the question of the right to bear knives, and the contempt of

Holmes and his henchmen for the American constitution, I will be

happy to arrange to have him burned in effigy.  With any luck there

will be some public discussion of the fraud, deceit and contempt

manifested by the Seattle prosecutor’s office for American rights!

Please find attached the photo of Seattle city attorney Pete Holmes in

the fire.  It is attachment #1.  Thanks!

Respectfully submitted in this           day of August  , 2019.

____________________________

.                                                                       David zaitzeff


[1] “Oregon considered the text and history of its own state constitution’s article I, section 27 in order to determine the meaning of the term ‘arms.’ Indeed, though we frequently decline to decide the parameters of the right guaranteed by our own article I, section 24, we have cited with approval to the Oregon Supreme Court’s interpretation of its analogous provision.” 

Evans, 184 Wn.2d at 867–68 (internal citations omitted).

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