Zaitzeff v. City of Seattle

• Citation: 484 P.3d 470
• Decision Date: 05 April 2021
• Docket Number: No. 80436-7-I,80436-7-I
• Parties: David ZAITZEFF, Petitioner, v. CITY OF SEATTLE, Respondent.
• Court: Court of Appeals of Washington

484 P.3d 470

David ZAITZEFF, Petitioner,

v.CITY OF SEATTLE, Respondent.

No. 80436-7-I

Court of Appeals of Washington, Division 1.

FILED April 5, 2021

Noah E Weil, Law Office of Noah Weil PLLC, 4500 9th Ave., Ne Ste. 300, Seattle, WA, 98105-4762, for Petitioner.

Richard Edward Greene, Seattle City Attorney's Office Criminal, 701 5th Ave., Ste. 2050, Seattle, WA, 98104-7095, for Respondent.

James Wayne Herr, Savitt Bruce & Willey, 1425 4th Ave., Ste. 800, Seattle, WA, 98101-2272, Teymur Gasanovich Askerov, Black & Askerov, PLLC, 705 2nd Ave., Ste. 1111, Seattle, WA, 98104-1720, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

PUBLISHED OPINION

Chun, J.

¶ 1 David Zaitzeff walked around Seattle's Green Lake Park with a sheathed sword hanging from his neck. The City of Seattle charged him with violating Seattle Municipal Code (SMC) 12A.14.080(B) for carrying a "dangerous knife." Zaitzeff challenged the constitutionality of this ordinance under article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution, which challenge the municipal court rejected. The municipal court reserved ruling on Zaitzeff's necessity defense, suggesting that it was denying the defense unless more proof came to light during trial. Zaitzeff then agreed to a stipulated facts bench trial. The municipal court found him guilty. Zaitzeff appealed to the superior court, which affirmed. A commissioner of this court then granted Zaitzeff's petition for discretionary review. We hold that while Zaitzeff's sword is constitutionally protected, as applied here, SMC 12A.14.080(B) does not violate either the state or federal right to bear arms. We also hold that the municipal court did not violate Zaitzeff's Sixth Amendment¹ right to present a defense by rejecting his necessity defense. As a result, we affirm.

I. BACKGROUND

¶ 2 In May 2018, Zaitzeff walked around Green Lake Park with a sheathed sword hanging from his neck. A citizen called 911. The caller said Zaitzeff was wearing a thong, approaching women, and taking photos of them. When police officers arrived, they confirmed he had a sword, which measured about 24 inches long. Zaitzeff acknowledged he was aware of the ordinance against fixed blade knives and that he was not hunting, fishing, or going to or from a job requiring a sword. The officers took the sword and cited him.

¶ 3 The City charged Zaitzeff with unlawful use of weapons under SMC 12A.14.080(B). Zaitzeff moved to dismiss the charge, challenging the ordinance as unconstitutional as applied to his case. The municipal court denied the motion, concluding that the sword is not a constitutionally protected arm.

¶ 4 Zaitzeff informed the court and the City that he planned to assert a necessity defense. The City moved in limine to prohibit introduction of the defense and all evidence related to it. The court requested an offer of proof from Zaitzeff. He explained that he carried the sword because he had been assaulted in the past. But he conceded that "[t]here was no one imminently threatening me that particular day, no." The court reserved ruling on whether it would allow Zaitzeff to raise the defense, saying that it could revisit the issue if testimony showed that Zaitzeff faced an imminent threat around the time at issue. Zaitzeff then agreed to a bench trial with stipulated facts. The court did not revisit the issue of the necessity defense. And it found Zaitzeff guilty as charged.

¶ 5 Zaitzeff appealed to superior court, claiming that the ordinance is unconstitutional as applied to him, that the trial court violated his right to present a defense under the Sixth Amendment, and that insufficient evidence supported the guilty finding. The superior court affirmed. First, applying intermediate scrutiny, it determined that Zaitzeff had not met his burden of showing that the ordinance violated his constitutional rights under either Washington or United States constitution. It noted that insufficient evidence supported a finding that a sword is traditionally or commonly used as a weapon of self-defense. Next, it determined that the trial court correctly decided that Zaitzeff's offer of proof did not support a necessity defense. And finally, it concluded that sufficient evidence supported the conviction.

¶ 6 Zaitzeff sought discretionary review before this court on the issues of the constitutionality of the ordinance and his ability to present a defense. A commissioner of this court granted review.

II. ANALYSIS

A. The Constitutionality of SMC 12A.14.080(B) as Applied to this Case

¶ 7 Zaitzeff says that as applied here, SMC 12A.14.080(B) violates article I, section 24 and the Second Amendment. The City responds that neither constitutional provision protects his sword as an arm. And it adds that even assuming such protection, the ordinance is constitutional as applied. We conclude that as applied here, the ordinance does not violate either constitution.

¶ 8 We review de novo constitutional issues. City of Seattle v. Evans, 184 Wash.2d 856, 861–62, 366 P.3d 906 (2015). "We presume that statutes are constitutional and place ‘the burden to show unconstitutionality ... on the challenger.’ " Id. (alteration in original) (internal quotation marks omitted) (quoting In re Estate of Hambleton, 181 Wash.2d 802, 817, 335 P.3d 398 (2014) ). In an as-applied constitutional challenge to an ordinance, a party claims that application of the law to the specific context of their actions is unconstitutional. Id. at 862, 366 P.3d 906. " ‘Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.’ " Id. (internal quotation marks omitted) (quoting City of Redmond v. Moore, 151 Wash.2d 664, 668-69, 91 P.3d 875 (2004) ).

¶ 9 Under article I, section 24 of the Washington Constitution, "[t]he right of the individual citizen to bear arms in defense of [themselves], or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men." Under the Second Amendment to the United States constitution, "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In District of Columbia v. Heller, the United States Supreme Court held that "the inherent right of self-defense has been central to the Second Amendment right." 554 U.S. 570, 628–29, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The Supreme Court applied the Second Amendment to the states through the Fourteenth Amendment in McDonald v. City of Chicago, Ill., 561 U.S. 742, 750, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).

¶ 10 SMC 12A.14.080 provides, "It is unlawful for a person to: ... B. Knowingly carry concealed or unconcealed on such person any dangerous knife, or carry concealed on such person any deadly weapon other than a firearm." A dangerous knife is "any fixed-blade knife and any other knife having a blade more than 3 ½ inches in length." SMC 12A.14.010. Exceptions apply to SMC 12A.14.080(B) for using a knife for fishing, hunting, or occupational purposes, and carrying a knife to one's home or work in a secure wrapper. SMC 12A.14.100.

1. Whether the federal or state constitution protects Zaitzeff's sword

¶ 11 Zaitzeff says that a sword is constitutionally protected because it is a traditional arm. He asserts that a sword has been historically used for self-defense. The City parries by contending that a sword is an offensive tool of war, not one commonly used for self-defense.² We conclude that the federal and state constitutions protect Zaitzeff's sword as an arm.

a. Federal case law

¶ 12 In Heller, the United States Supreme Court addressed a District of Columbia statute banning the possession of handguns in the home. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637. The Court recognized arms as " ‘[w]eapons of offense, or armour of defence,’ " and " ‘any thing that a [person] wears in [their] defense, or takes into [their] hands, or useth in wrath to cast at or strike another.’ " Id. at 581, 128 S. Ct. 2783 (first alteration in original) (quoting 1 SAMUEL JOHNSON, DICTIONARY OF THE ENGLISH LANGUAGE 106 (4th ed. 1773) (reprinted 1978); 1 TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY (1771)). The Court said that the Second Amendment protects weapons " ‘in common use at the time’ " of the founding.³ Id. at 627, 128 S. Ct. 2783 (quoting United States v. Miller, 307 U.S. 174, 179, 59 S. Ct. 816, 818, 83 L. Ed. 1206 (1939) ). And the Court noted that " ‘[i]n 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.’ " Id. at 624–25, 128 S. Ct. 2783 (second alteration in original) (quoting State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94 (1980) (citing G. NEUMANN, SWORDS AND BLADES OF THE AMERICAN REVOLUTION 6–15, 252–254 (1973)). The Court held that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Id. at 624–25, 128 S. Ct. 2783.

¶ 13 Heller addresses handguns⁴ and offers no explicit guidance on swords.⁵ But Heller’s definitions of arms suggest that the Second Amendment protects swords as arms. Historically, swords have been weapons of offense used to strike at others. And while law-abiding citizens do not typically carry swords for lawful purposes today, as further discussed below, swords were common at the time of founding.

b. State case law

¶ 14 In Evans, the Washington Supreme Court held that neither the state nor federal constitutions protected the appellant's paring knife. 184 Wash.2d at 873, 366 P.3d 906. The court said that "arms" requires that the instrument be a weapon. Id. at 865, 366 P.3d 906. The court held that under both article I, section 24 and...