DECLARATION OF MARION ESTELLA SMITH

I, Marion E. Smith, declare as follows.

1. I have first hand personal knowledge of all facts declared herein, and, if called to testify, I could and would testify competently as to these facts of my own personal knowledge.

2. I am the natural biological mother of James Albert Smith, Sr., born August 26, 1950.

3. I have reviewed a copy of the documents filed by the City Attorney for the City of Pittsburg in the case of CITY OF PITTSBURG v. James Smith, Sr., Contra Costa County Superior Court Case No. NO2--0068. These documents include the ďPETITION SEEKING JUDICIAL DETERMINATION RE RETURN OF FIREARM OR DEADLY WEAPON; AND DECLARATION OF CITY OF PITTSBURG POLICE OFFICER JOE TERRY IN SUPPORT THEREOF.Ē

4. Page one, paragraph 2, of City of Pittsburg Police Officer Joe Terryís declaration in the above referenced case states:

On December 18, 2001, I was dispatched to 30 Oakbrook Place in the City of Pittsburg. Dispatch had been advised that Respondent James Smith Sr. (ďRespondentĒ) had been in an argument with his family in the City of Walnut Creek. He told his family that he was leaving and was going to commit suicide with a handgun that he kept in his truck. Respondent reportedly showed family members a loaded magazine to a handgun.

5. On December 18, 2001, I lived with my husband, Albert O. Smith, Jr., at 151 Fabian Way, Concord, California 94519, and I continue to live at that address.

6. On December 18, 2001, my family did not have any family members who lived in Walnut Creek, California.

7. If my son, James Albert Smith, Sr., on December 18, 2001, or on any other day, had threatened to commit suicide with or without any firearm, in any location, I would certainly remember that incident or any such incident. I have no such recollection of any such incident. If any thing like what Officer Terry reported in paragraph 2 of his declaration had occurred, I most definitely would have remembered it. This is because it would have made a lasting impression on me.

8. No one has told me that I suffer from any form of senility, dementia, Alzheimerís, etc. I have not been diagnosed as suffering from any form of mental impairment.

9. My husband, my sons, and my grandchildren, and I, are a close family unit. We are a loving family who communicates with each other frequently and fairly openly. I have never heard any family member discuss, or mention, as true, anything consistent with anything that Officer Terry reports in paragraph 2 of his declaration. Hence, what Officer Terry reported in his paragraph 2 is a shock. I do not believe that what Officer Terry reported is true. Perhaps a dispatcher did get some kind of a report and did dispatch Officer Terry to my sonís residence, but I believe nothing else is true. I believe one or more mistakes occurred someplace in what Officer Terry reported and declared.

10. On December 18, 2001, my son, James Albert Smith, Sr., in, or outside my presence did not threaten to commit suicide in any fashion, did not show me, or any other family member in my presence, a loaded magazine to a handgun.

11. On December 18, 2001, I did not call 911, any law enforcement agency, or any kind of emergency response or crisis intervention organization for any kind of help to keep my son, James Albert Smith, Sr., from committing suicide.

12. My son, James Albert Smith, Sr., would not threaten to commit suicide and communicate that to me directly. He is too kind and too responsible to do that to me.

13. I have never heard my son, James Albert Smith, Sr., threaten to commit suicide.

14. I have never been worried that my son, James Albert Smith, Sr., was suicidal. I am not so worried now. If the judge in this case returns my sonís .45 caliber Colt 1911 semi-auto pistol to him, with or without any pre-condition, I will not be worried that my son will commit suicide with it, threaten to commit suicide with it, harm himself with it, harm or threaten anyone else with it, or commit any crime with it.

15. I believe that my son, James Albert Smith, Sr., is not suicidal.

16. My son, James Albert Smith, Sr., has owned firearms for decades. I believe he is responsible with firearms. I trust my son, James Albert Smith, Jr. with firearms. I have often heard my son, James Albert Smith, Sr. complain about others who handle firearms irresponsibly. He is very careful with firearms.

17. I have no meaningful concern that my son, James Albert Smith, Sr., will commit suicide, with or without a firearm.

18. Since December 18, 2001, my son, James Albert Smith, Jr., has owned, controlled, and had immediate access to several firearms. He does not need the one that the City of Pittsburg Police Department holds against his will to commit suicide.

19. I support my sonís principled position that the court return his pistol to him without him having to submit to any prior restraint or pre-condition. I admire my son for taking a principled position instead of an expedient, practical position. If my son wanted to use this pistol to commit suicide, he could have simply promised the judge anything to get the pistol back, and he could have saved attorney fees. Instead, however, to his credit, at least in my judgment, he took a principled position which he believes is Constitutionally correct, which is why he will not submit to any infringement against his Second Amendment and/or inalienable rights.

20. I have no worry whatsoever that my son would use this pistol irresponsibly once it is returned to him.

21. I want the court to return this pistol to my son forthwith, without any prior restraint.

22. I appreciate the courtís concern for my sonís welfare, but I believe that concern is unwarranted and does not justify an infringement against my sonís Constitutional and inalienable rights.

I declare under penalty of perjury under the laws of the State of California that the foregoing in true and correct, and that this declaration was made in Sebastopol, California on June 11, 2002.

Marion E. Smith