DECLARATION OF MARK FALLS, PhD

 

 I, Mark Falls, 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.         In May, 1979 I graduated from San Diego State University, San Diego, California with a Bachelor of Science, Psychology. In May, 1983, I graduated from the United States International University, San Diego, California, with a Masters of Arts, Psychology, Marriage and Family Therapy Specialization, In October, 1988 I graduated from the United States International University in San Diego, California with a Doctorate, Psychology, Marriage and Family Therapy Specialization. In July, 1985, I became a California licensed Marriage, Family and Child Counselor, License No. MFC 20510. In January, 1993, I became a California licensed Clinical Psychologist, License No. PSY 13175.

3.         From July, 1985 to date, I have been self-employed in private practice as a California licensed Marriage, Family and Child Counselor and as a California licensed Clinical Psychologist, specializing in treatment of adolescents, families, couples, and substance abusing adolescents and adults. From June, 1995 to date, I was, and I am, Founder and Director of Kids Off Chemicals, which is an intensive outpatient drug program for adolescents. From February, 1992 to June, 1998, I was the Mental Health Coordinator for Health Plan of the Redwoods, a major health maintenance organization headquartered in Sonoma County, California. From October, 1999 to date, I was, and I am, the Associate Director of Behavior Health at Sutter Medical Group in Santa Rosa, California. From October, 1999 to date, I was, and I am, the Supervisor, School Intern Counseling Program, at Piner-Olivet School District in Sonoma County, California.

4.         I am a full time, self-employed, active, practicing, Marriage, Family and Child Counselor and Clinical Psychologist. My licenses are current. I am a member in good standing with various relevant professional associations. I am current on the professional literature of professional interest to me for my areas of professional specialization.

5.         My office address is: Mark Falls, PhD, Clinical Psychologist, 627 College Ave., Santa Rosa, California 95404. My office telephone number is: (707) 525-9300.

6.         As a college undergraduate, as a post-graduate student, as a licensed Marriage, Family and Child Counselor, and as a licensed Clinical Psychologist, I have had extensive initial, periodic, and on-going, professional training, and extensive, first hand professional experience, that dealt with detecting, recognizing, coping with, and treating people who are an unreasonable harm to themselves, to others, are gravely disabled, and/or would be unreasonably dangerous if they had access to a firearm.

7.         I am knowledgeable about California Welfare & Institution Code [W&I C] section 5150, which deals with the detention of mentally disordered persons for evaluation and treatment, and section 8102, which deals with the confiscation, custody, and destruction, or return, of a firearm or other deadly weapon, confiscated from a person who was subjected to a 72-hour hold pursuant to W&I C section 5150. Briefly, this professional training and experience, consisted of the following: intensive graduate study in law and ethics; continuing education requirements for my clinical license--Foundations of Legal and Ethical Clinical Practices, Parts I and II, 1999; as part of my duties as Director of Behavior Health for Sutter Medical Group, I need to know this area of the law thoroughly because I need to determine if W&I C section 5150 criteria apply to persons with whom I come into professional contact; and in my clinical practice I have to be prepared to evaluate and apply 5150 criteria on a daily basis, which I am frequently called upon to do.

8.         Before June, 2002, I did not know attorney Peter J. Mancus of Sebastopol, California. I have never socialized with him. I have never worked with him. I have never had any direct contact with him. In fact, I have never met Mr. Mancus. I got involved in this case when a person with a male voice who identified himself as Peter Mancus, an attorney in Sebastopol, California, telephone me a few days ago and asked me these questions: first, am I qualified to determine if a person is an unreasonable harm to himself, to another, is gravely disabled, or would be unreasonably dangerous to himself or to others if he had access to a firearm?; second, would I be willing to do a mental examination of one of his clients, a Mr. James A. Smith, Sr., in terms of those questions, in the near future, and “call it as you see it,” and sign a sworn declaration to that effect and, if necessary, give sworn testimony in court consistent with my declaration?; third, how soon could I see Mr. Smith for the mental examination?; fourth, what would I charge for my professional services?; fifth, do I have any strong opinions about gun control that would cloud my professional judgment on these issues?; and sixth, what do I think of this test for denying a person

 

 access to firearms--if they are “the least bit mentally imbalanced” they should not have access to firearms?

9.         I told Mr. Mancus that I am well qualified to make such a determination; I was willing to do a mental examination of Mr. Smith; I could do it on June 26, 2002 at 12:30 p.m. at my office in Santa Rosa, California; my billing rate would be $200.00 per hour; I would be willing to sign a declaration under penalty of perjury if it stated the truth as I know it; I would be willing to give sworn testimony in court subject to reasonable notice and my availability if it did not interfere with my prior plans; I do not have any strong opinions about gun control that would interfere with my ability to render a competent, professional assessment of Mr. Smith’s mental status; and “the least bit mentally imbalanced” is not a professional term used by licensed mental health care professionals because that term is too imprecise, too vague, too arbitrary, too subjective.

10.       I personally met with James A. Smith, Sr. on June 26, 2002, from 12:30 p.m. to 1:30 p.m.   at my office in Santa Rosa, California. At the beginning of our meeting, Mr. Smith promptly gave me $400.00 cash as and for the anticipated amount of my final bill for examining him, discussing my examination with Mr. Mancus, and reading Mr. Mancus’ proposed declaration for me to sign. Mr. Smith told me his intent was to pay me up front, in full, before he and Mr. Mancus knew what my professional assessment of Mr. Smith would be because he and Mr. Mancus wanted to assure me that I was paid in full regardless of what my professional assessment of Mr. Smith would be.

 

11.       I spent sufficient time on June 26, 2002 conducting a professional mental examination of James A. Smith, Sr. Mr. Smith was fully cooperative. My examination focused on these issues:

                        A.        Is Mr. Smith an unreasonable harm to himself?

                        B.         Is Mr. Smith an unreasonable harm to others?

                        C.        Is Mr. Smith gravely disabled?

                        D.        Would the return of a firearm or other deadly weapon to Mr. Smith be likely to result in endangering Mr. Smith, another person and/or others?

12.       I focused on these questions because “A” through “C” are the tests sets forth in W&I C section 5150 and “D” is the test set forth in W&I C section 8102.

13.       Mr. Mancus also told me that the California District Court of Appeal in Rupf v. Yan (2000) 85 Cal.App.4th 411 is a case based on W&IC sections 5150 and 8102 facts [assault weapons confiscated from an individual held for 72-hours] and the Rupf court, at page 433, footnote 3, declared this, “The court will be candid that the court finds that the nature of these particular assault weapons are inappropriate in the hands of anybody with the least bit of mental imbalance . . . .” [Emphasis added.]

14.       Mr. Mancus told me it appears to him that the Rupf court took section 8102's expressed test [Would the return of a firearm or other deadly weapon to Mr. Smith be likely to result in endangering Mr. Smith, another person and/or others?] and diluted it down to its new test [“the least bit of mental imbalance”].

 

15.       I did not consider Rupf’s “the least bit of mental imbalance” test in terms of Mr. Smith. This is because mental health practitioners use the standards outlined in W&I C section 5150 to evaluate whether a person is at risk to harm self, others and/or is gravely disabled. The concept “the least bit mentally imbalance” is not a professionally sanctioned clinical phrase or term.

16.       Applying W&I C section 5150's test to Mr. Smith, my candid, professional assessment of Mr. Smith as of June 26, 2002 when I meet with him is as follows:

                        A.        Is Mr. Smith an unreasonable harm to himself? My answer is: No.

                        B.         Is Mr. Smith an unreasonable harm to others? My answer is: No.

                        C.        Is Mr. Smith gravely disabled? My answer is: No.

17.       Applying W&I C section 8102's test to Mr. Smith, my candid, professional assessment of Mr. Smith as of June 26, 2002 when I meet with him is as follows: Would the return of a firearm or other deadly weapon to Mr. Smith be likely to result in endangering Mr. Smith, another person and/or others? My answer is: No.

18.       The material factual basis for my answers, with my reasoning-to-result, is as follows.

                        A.        Mr. Smith is not an unreasonable harm to himself. This is because in my evaluation I determined Mr. Smith to be oriented as to person, place, and time. Given this I had every reason to believe that when Mr. Smith stated that he had no intention prior, presently, or in the future, of harming himself with a firearm or any other means, he was telling me the truth.

           

                        B.         Mr. Smith is not an unreasonable harm to others. This is because, as per the above, Mr. Smith stated he had, and has, no intention of harming anyone.

                        C.        Mr. Smith is not gravely disabled. This is because Mr. Smith owns his own home, several vehicles, cares for himself more than adequately on a daily basis, and is not suffering from a major mental health disorder.

                        D.        The return of a firearm or other deadly weapon to Mr. Smith would not be likely to result in endangering Mr. Smith, another person and/or others. This is because Mr. Smith has no intention to endanger himself--or anyone else--with a firearm or other deadly weapon. Based on Mr. Smith’s current mental status, this statement is believable.

19.       Based on what Mr. Mancus told me, my understanding of how this declaration will be used follows. Contra Costa County Superior Court Case No. NO2--0068 involves a dispute between the City of Pittsburg Police Department and James A. Smith, Sr. This dispute started in December, 2001, when City of Pittsburg police officers were dispatched to Mr. Smith’s residence because the local police department received a report that Mr. Smith had recently threatened to commit suicide with a handgun. Consequently, City of Pittsburg police officers went to Mr. Smith’s residence, made contact with him, took into their possession Mr. Smith’s Colt Commander .45 ACP semi-automatic pistol but knowingly left other handguns and rifles owned by Mr. Smith at Mr. Smith’s residence, and placed Mr. Smith on a Welfare & Institution Code § 5150 72-hour hold on the basis of the report that Mr. Smith had recently threatened suicide with a firearm and that the officers(s) perceived Mr. Smith to arguably be an unreasonable risk of harm to himself at that time. It is also my understanding that after Mr. Smith was screened by one or more California licensed, government employed, mental health professionals, including a psychiatrist, at the mental facility to which the officers had Mr. Smith taken, within a few hours, on the same day, those licensed mental health experts determined Mr. Smith did not present a threat to himself and/or to others, and they authorized his release forthwith; thus, Mr. Smith was released on the same day that he was involuntarily made subject to a 72-hour hold. It is also my understanding that since this incident, Mr. Smith has continued to have access to other firearms that he owns and possesses, has not done anything objective that constituted an attempt to commit suicide, has not done anything objective that has caused anyone to point to any objectively verifiable fact that Mr. Smith presents as an undue risk of harm to himself and/or anyone. It is also my understanding that Mr. Smith’s criminal record, except for minor moving violations, is clean or minor, and that Mr. Smith is twice honorably discharged from the U.S. Air Force, having served as a jet engine mechanic. It is also my understanding that since this incident, the City of Pittsburg has filed a petition to have a superior court judge make a judicial determination regarding whether or not Mr. Smith’s Colt Commander pistol should be returned to him, with or without any pre-condition or, in the alternative, destroyed. It is also my understanding that the judge who is assigned to this case told Mr. Smith that the judge would return this pistol to Mr. Smith if Mr. Smith promised to not commit suicide with it, but Mr. Smith refused to make such a promise. This is because Mr. Smith views the judge’s offer to be an unconstitutional prior restraint infringement against his rights. It is also my understanding that the attorney who is prosecuting this case for the City of Pittsburg told Mr. Smith that she will go along with the return of this pistol to Mr. Smith if, and only if, he and his parents agree in writing that the pistol would be entrusted to his parents for two years and his parents would have to agree in writing to this and other conditions, but neither Mr. Smith nor his parents are agreeable to this solution. This is because Mr. Smith and his parents consider this proposed solution to be an unconstitutional prior restraint infringement against Mr. Smith’s rights. Given this understanding, I agreed to cooperate with Mr. Mancus.

20.       I recommend that the court order that Mr. Smith’s Colt Commander handgun be returned to him without any precondition imposed, forthwith.  This is because Mr. Smith, at the time of my evaluation, in my best professional clinical judgment, does not pose a threat to himself or others.

21.       I am comfortable with my professional assessment of Mr. Smith and my recommendation to the court. This is because using the standards set by section 5150 and 8102, which I used in evaluating him, in my best professional, clinical judgment, Mr. Smith does not come across as, nor sound as if, he ever met the statutory criteria that would suggest he is a threat to himself or to others, now and/or in December, 2001.

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22.       If required, I am willing, upon notice, when it does not interfere with my plans and commitments, to appear in court in Martinez, California to give sworn testimony, consistent with what I have declared herein.

            I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct, and that this declaration was made in Santa Rosa, California on June 27, 2002.

                                                                                                                                      

                                                            Mark Falls, PhD