"MANCUS V. JUDGE"
"My experiences with Ms. Victor, and you, reinforce my belief that this nation, and its citizens, will be safer, and freer, when civil
authority wears its Constitutional collar and remains tied down by the Constitution's chains."
With Dr. Mancus' and James Smith's written permission and encouragement, here is an exact copy of the REQUEST FOR RECUSAL [remove himself] AND CONTINUANCE in the case of the City of Pittsburg v. James Smith Sr., in the matter of the refusal of the city to return Smith's hand-gun. The judge has made it clear that he is not concerned about "bright lines" of the Constitution or BOR, among other things. We are honored to have the privilege of placing this incredibly well written document on your screen.
Peter J. Mancus
Attorney at Law
876 Gravenstein Ave. So., Suite 3
Sebastopol, CA 95472
Tel: (707) 829-9050
July 30, 2002
Honorable David B. Flinn
Judge, Superior Court, Contra Costa County
P.O. Box 911
725 Court Street
Martinez, CA 94553
Carol Victor, Esq.
Assistant City Attorney, City of Pittsburg
Law Offices of Linda L. Daube
454 West Napa, Suite 200
Sonoma, CA 94576
Director of Mental Health Services
Mental Health Administration
Contra Costa Regional Medical Center
1340 Arnold Drive, Suite 200
Martinez, California 94553-3191
RE: 1. CITY OF PITTSBURG v. JAMES SMITH, SR., CASE NO. NO2-0068
2. REQUEST FOR RECUSAL
Dear Judge Flinn:
I appeared before you in the above referenced case on behalf of
James Smith, Sr. on July 10, 2002. That appearance was my first and
appearance before you.
I write to you about three interrelated concerns: recusal,
Concern No. 1: Recusal
Based on my observations of you during your handling of your law and
motion calendar before you called the Smith case and your handling of the Smithcase, you manifested material signs of being a good to excellent jurist. You also manifested having a Constitutional consciousness that might exceed that of some jurists. Those observations, and remarks, are sincere. They are not strokes. On the other hand, during the Smith hearing, you also manifested
reasoning, decision-making, and remarks that cause me to entertain
serious reservations about your impartiality in this case. This is because, in my judgment, you manifested reasoning, decision-making, and remarks that cause me to have grave, legitimate, concerns about the fate of Mr. Smith's confiscated Colt Commander semi-auto pistol and Mr. Smith's rights to same.
A partial, highly abbreviated, example of my concerns, and my
reasoning-to-result, about your qualifications to continue to hear, and to decide, this case follows.
At my request, Allison Santiago, one of your court reporters, prepared a transcript of the July 10, 2002 hearing in this case. On page 31 of that transcript you made the following remarks during my motion to deny the city's petition to destroy Mr. Smith's pistol.
THE COURT: How is the Court to react to the fact that he has
knowledge of siting numerous years in the probate capacity that it is a general policy in almost 99 percent of the cases there's a suicide threat they interview and release because of the space at the hospital? . . . .
[Mancus' remarks: Your question, in context, came at a time when I
was in the process of telling you that government employed, licensed, mental health care professionals who evaluated Mr. Smith at the Contra Costa Medical Facility in Martinez, did not accept the 72-hour hold that the law enforcement officers slapped on Mr. Smith, and, instead, these licensed mental health care experts released Mr. Smith promptly, after finishing their initial intake evaluation of him, after determining that it was not justifiable to hold him because he did not present as an unreasonable risk of harm or danger to himself and/or to others and he was not gravely disabled. In this context, the they that you referenced is clearly the licensed mental health care experts at the Contra Costa Medical Facility in Martinez. I had placed a great deal of emphasis on the fact that these experts released Mr. Smith after they finished their initial screening
evaluation without imposing a 72-hour hold. This fact is strongly
suggestive that in their expert opinion Mr. Smith was not suicidal, etc. The fact that this facility did not impose a 72- hour hold on Mr. Smith is substantially corroborated by Officer Terry's sworn declaration. Officer Terry, at No. 4 of his declaration said, "Respondent [Mr. Smith] was evaluated and released from the hospital [the Contra Costa Medical Facility in Martinez] on December 18, 2001.," which is where Officer Terry had Mr. Smith taken a few
hours earlier on the same day. In context, Officer Terry, a young law
enforcement officer, confirmed that licensed mental health care
professionals would not accept Mr. Smith per a 72-hour hold. You,
however, elected to give zero weight to the fact that licensed mental health care providers refused to accept Mr. Smith, per a 72-hour hold. Instead, you elected to give weight to Officer Terry's statement that Mr. Smith admitted to him that Mr. Smith was suicidal. By your remark, you interjected new information that did not come from the witness stand in this case and that
neither attorney in this case stipulated was a fact. Nevertheless, you interjected this new information as evidence and accepted it as
evidence via your taking judicial notice of this evidence. That was, and is, improper.]
THE COURT: My only knowledge is from hearing, you know, what's now
probably hundreds of these cases. . . .
THE COURT: I think you have to call that witness. If you're going to
that evidence on, they have to have the right to cross- examine.
I was professionally stunned when you made these remarks, individually
collectively. I did not want to lock horns with you over these remarks,
especially not without first seeing a copy of the transcript to make
that my ears did not deceive me, and especially not without first doing
legal research to confirm my strong suspicions that, by these remarks,
crossed an important line and violated one or more judicial canons of
ethics. Hence, out of an understandable desire to avoid your wrath, I
pressed on, hoping that despite your remarks, I could persuade you to
my motion, which proved to be futile.
The District Court of Appeal in Catchpole v. Brannon (1995) 36
237, a disqualification of a judge for cause case, declared the
Few more daunting responsibilities could be imposed on counsel than
duty to confront a judge with his or her alleged . . . bias in
trial. The risk of offending the court and the doubt whether the
could be cured by objection might discourage the assertion of even
meritorious claims. Requiring the issue to be raised at trial would
therefore have the unjust effect of insulating judges from
for bias. . . . We hold that the issue may be raised on appeal
whether objection was made below. 
To go back to your original question of me, "How is the Court to react
the fact that he has knowledge of sitting numerous years in the probate
capacity that it is a general policy in almost 99 percent of the cases
there's a suicide threat they interview and release because of the
the hospital?," it was appropriate for you, and ethically required of
to disclose this information to counsel. However, you should have
your own question along these lines: since this "evidence" [your prior
knowledge] did not come from the witness stand in the Smith case, and
neither Ms. Victor nor I stipulated to this "evidence," you should have
given any weight nor any further consideration to this "evidence." But,
did, in violation of the norms laid out by Catchpole.
. . . the phrase "due process of law" . . . minimally contemplates
opportunity to be fully and fairly heard before an impartial
The presence of judicial partiality is, of course, most pernicious
claimed here--it bears on the matter to be decided. . . . [There is a]
venerable principle that "'[t]he trial of a case should not only be
fact, but it should also appear to be fair. And where the contrary
it shocks the judicial instinct to allow the judgment to stand.'"
. . . if a reasonable man [or woman] would entertain doubts
judge's impartiality, disqualification is mandated. . . . "[t]he test
the appearance of impropriety is whether a person aware of the facts
reasonably entertain a doubt that the judge would be able to act with
integrity, impartiality, and competence." 
. . . the sources of judicial authority lies ultimately in the faith
the people that a fair hearing may be had. Judicial behavior inimical
that necessary perception can never be countenanced and may well
basis for reversal even if not the product of . . . bias. 
[From Footnote 9] . . . the court unexpectedly took judicial notice .
and used the . . . discrepancy . . . as a reason to question her
credibility. The court should not have resorted to information never
in open court without affording the parties a reasonable opportunity to
such information before judicial notice is taken. (Evid. Code, 455,
subd.(b).) . . . [Per canon 3 of the Code of Judicial Conduct] . . . "[a] judge must not independently investigate facts in a case and must consider the evidence presented, unless otherwise authorized by law." . . . The factual inquiry independently undertaken by the court in this case without notice is uncharacteristic of an impartial judge.
A fair reading of the entire transcript for the July 10, 2002 hearing
me feel this way: you are willing to draw any inference to support the
petition to destroy Mr. Smith's firearm, you are unwilling to draw any
inference to deny the petition, and you are too prone to believe a law
enforcement officer merely because he or she is a law enforcement
By doing what you did, I respectfully submit you logically exposed
to the following meritorious observations and criticisms:
Your remarks in this regard also cause me to ask these questions,
- you stopped functioning as an impartial jurist;
- you volunteered information helpful to the Petitioner [City of
Pittsburg] and to its attorney, Ms. Victor;
- you helped Ms. Victor with her burden of proof, when she needed as
help as possible because her case against Mr. Smith and his pistol is
- you asked a legitimate question but you, in context, declined to
Smith any credit for being released early, telling me that you thought
to call one or more witnesses from the psych emergency ward to explain
they released Mr. Smith early [or, more accurately, refused to place
Smith under a 72-hour hold];
- you did not require Ms. Victor to produce a single witness to state
you volunteered--what you gave her on a silver platter;
- you, in effect, shifted the burden of proof on all of this,
from Ms. Victor to me, helping her and hurting me and Mr. Smith;
- as a judge, you are a vital arm of government, and, by your remarks,
logically created the reasonable impression that you were improperly
another form of government, the City of Pittsburg;
- that impression is reasonable and it is repulsive because you no
are experienced as being truly impartial;
- you improperly considered evidence that did not come from the
stand in this case nor that Ms. Victor and I stipulated to;
- you put me in a position to having to call you--the judge--to the
stand to examine you--forcefully, in the hearing over which you preside
make the initial final determination, which is most awkward and
- you put me in a position to having to call additional witnesses
should not have to call; and
- if your remarks about this facility are not true, you arguably
or indirectly slandered the government licensed mental health care
professionals who work at the Contra Costa Medical Facility in
I went to the psychiatric ward of the Contra Costa Medical Facility in
Martinez after court on July 10, 2002. My purpose was to try to
what you said about this facility is true or not. Face to face I talked
Carol Roberts, a supervisor at the psych emergency services facility. I
Ms. Roberts what you said. I also told her I was there simply to
if what you said about this facility, and its professionals, is true or
true, because it impacts Mr. Smith's legitimate interests and how I
represent him. Ms. Roberts told me that what you said about this
is, "Of course it is not true! It is absurd! Ridiculous!" A man with
hair with a name tag identifying him as a psych technician verbally and
demonstrably concurred with Ms. Roberts' remarks. Ms. Roberts, however,
refused to sign a declaration under penalty of perjury consistent with
she told me. She said she did not want to get involved.
- If what Judge Flinn opined about this facility is true, why is this
serious matter that the Contra Costa grand jury should investigate?
- What is the legitimate purpose, if any, for law enforcement officers
take Mr. Smith, and others, into civil custody, haul them off to this
facility for civil confinement for their alleged welfare and for the
public's alleged welfare, if this facility is merely going through the
motions, namely, is recklessly and dangerously releasing serious
risks and/or homicide risks back into the general population, with the
apparent knowledge of the local judiciary, at least to the knowledge of
- What, if anything, has Judge Flinn and/or the Contra Costa County
of Supervisors and/or the local print-electronic journalists, and/or
directors of this facility done about this intolerable situation? Why?
I then went to the administration for the entire facility to try to
the chief executive officer of the entire facility. I ended up talking
Chris Grazzini, R.N., M.S., Associate Executive Director Patient Care.
Grazzini told me that based on what she knew she agreed with Ms.
She took my name and number and told me she would follow up about this
her superiors and report back to me. She told me she would soon leave
vacation and I needed to be patient.
Today [July 30th ] I just got off the telephone with Ms. Grazzini. She
me that she was told to tell me that no one would sign anything. She
referred me to Dr. Bill Walker, who I am told is the most senior
for the entire Contra Costa Medical Facility in Martinez. I called Dr.
Walker to talk to him. I was told he was not available and that the
person for me to talk to is Donna Wigand, Director, Mental Health
who is the most senior administrator for all of the mental health
at this facility. I immediately telephoned Ms. Wigand. I only got a
recording, so I left a message urging her to telephone me.
Ms. Wigand just called me back, on a cell phone. The reception at
good and at times, poor. Ms. Wigand told me she heard and understood
said you said about her facility. I asked her if what you said about
facility is true. She said, "Not in my opinion." The reception then
so I hung up.
Ms. Wigand said she had only a few minutes to talk to me since she was
going to a meeting. Given Ms. Wigand's input, I shall send her a copy
this letter. By doing so, I am asking her to read this letter
examine her facility's records on Mr. James A. Smith, Sr. from December
2001, and get back with me as to whether or not she and/or one or more
licensed mental health care professionals from her facility, preferably
who evaluated Mr. Smith on December 18, 2001, will cooperate with me so
can marshall the best defense I can for Mr. Smith.
What you said about Ms. Wigand's facility is either true or false. If
the entire 72- hour civil hold for alleged, or bonafide, suicide
appears to be a disingenuous sham in Contra Costa County. Perhaps the
no one from this facility so far will state in writing that what you
about them is false is because they know what you said about them is
In any case, this situation increasingly appears to be newsworthy. In
sense, subject to what Ms. Wigand and/or Mr. Smith has to say, perhaps
copy of this letter should be turned over to the Grand Jury for Contra
County and/or investigative reporters for major print and electronic
that service Contra Costa County.
Even if what you said about this facility is true, it is my best
professional opinion that it was ethically improper for you to consider
information in this case because it did not come from the witness stand
this case and neither Ms. Victor nor I entered into a stipulation
As you know, where relevant, Code of Civil Procedure 170.1 states:
(a) A judge shall be disqualified if any one or more of the following
true: (1) The judge has personal knowledge of disputed evidentiary
concerning the proceeding. . . . (6) For any reason (A) the judge
his or her recusal would further the interests of justice, (B) the
believes there is a substantial doubt as to his or her capacity to be
impartial, or (C) a person aware of the facts might reasonably
doubt that the judge would be able to be impartial.
Judge Flinn, for each of the reasons stated in this excerpt from
respectfully and regretfully implore you to recuse yourself, per Code
Civil Procedure 170.3.
A sad fact is this: I am a person who reasonably entertains a doubt
your ability to be impartial in this case. Mr. Smith concurs. I do not
your apparent willingness to believe a law enforcement officer's
I also do not share your apparent willingness to adhere to stare
when precedents are frankly unconstitutional. I also do not share your
apparent willingness to lower the bar so low for alleged justification
destroying Mr. Smith's pistol.
Should you fail to promptly recuse yourself, I will, pursuant to Code
Civil Procedure 170.3(c)(1), promptly file with the court clerk a
verified, detailed, objection to you continuing to serve as a jurist in
Out of respect for you as a human being, and as a jurist, and,
a matter of practicality and conserving energy, I prefer to have you
yourself so I do not have to file a formal objection which becomes part
the court's public record.
I understand the high premium value of an independent judiciary, if,
only if, the judiciary remains loyal to the U.S. Constitution and not
nor against the U.S. Constitution. I also understand the high premium
of attorneys who are fiercely independent and who function as zealous
advocates for their clients. I trust, therefore, that you, and your
judges [in county and/or out of county] will refrain from penalizing
Mr. Smith and/or myself for anything arising from this communication.
Regardless, it is not my function to be a mere automaton nor potted
who allows civil authority to steam roll Mr. Smith into oppression.
Concern No. 2: Continuance
This matter is currently scheduled to reconvene before you on August
2002, which is a Wednesday. At the last hearing, on July 10, you told
that if I had any problems with witnesses to set a conference call with
Victor and get a new date.
I do have a problem with an expert witness--Mark Falls, Ph.D., a
mental health care expert. Dr. Falls is willing to come to court to
100% consistent with his sworn declaration on file with this court, but
can do so only on a Monday or a Friday, and August 7 is neither. Also,
you recuse yourself, August 7 would appear to be a bad date, and, if
decline to recuse yourself, I will file a formal, written, verified
objection to you, based on cause, at or before the resumption of the
on August 7.
Per the court reporter's transcript, Ms. Victor said on the record
was going to be on vacation from July 19th through August 3rd. Thus,
currently unavailable for me to discuss these concerns by telephone,
is why I sent her an original copy of this letter contemporaneously
mailed a separate original to you.
Given Concerns Nos. 1 and 2, please advise promptly how you wish to
so I may take appropriate, timely action.
Concern No. 3: Constitutionalism
At page 40 of the reporter's transcript for the July 10, 2002 hearing
the Smith case, you said:
THE COURT: Time out. Take a time out on this point. I don't think
value to you. It is my interpretation of the law that the meaning of
constitution and its role in our society and the stare decisis
that the courts follow, higher courts have been resolved in the other
direction. That if the United States Constitution is interpreted as to
whether it's violated or not violated under certain fact situations by
court, superiors of this court, I am bound by that finding. And also
my oath because I also took the oath to uphold, quote, the law and the
is as designated by those courts.
At pages 40-43, I replied to your above statement as follows, and you
rejoined with what follows:
MR. MANCUS: I understand. . . . Per stare decisis and the lower level
court's precedence you're correct the precedents are against the
I'm advocating. I'm just saying that simply puts the entire judiciary
bind. If those precedents conflict with the constitution and the bill
rights, you have a conflict, and it's a question of which do you
you honor your oath and follow the constitution or do you follow the
decisis? Some people can say there's no conflict.
THE COURT: Well, under that analysis - we're getting very academic
and probably beyond the need- but under that analysis we have to give
gun back to a murderer as well. . . .
MR. MANCUS: I totally disagree with that. And briefly the reason is
constitutionally it is totally appropriate and constitutionally
punish someone for their behavior in misusing a firearm. But it is not
constitutionally permitted to discipline or impose prior restraint
regulation because of a fear of what they might do. You have to wait
they actually do it. That's what the right of the people to keep and
arms shall not be infringed is all about. It says the right of the
not the right of the state. Doesn't say the right of the national
right of the people. He's one of the people, and it says "shall not be
infringed." "Shall" is mandatory. "Not" is a clear negative. "Infringe"
means no prior restraint. . . . It's hands off. You could punish and
after . . . he actually behaves in an unreasonable illegal criminal
. . . line drawing is for the courts to decide but only consistent with
constitutional bright lines drawn by the constitution and set forth in
constitution which includes the first ten amendments, the Bill of
And the constitutional bright line here is "shall not be infringed." No
THE COURT: I really think, Counsel, you've made a record on this. I
disagree. I believe the appellate courts bind me superior to my
interpretation of the constitution. Even if I might even agree with you
that would be my interpretation of the constitution but I think I'm
their decisions, and I do find that the statute is constitutional as
This exchange between us reminds me of what happened to the U.S. Air
Force's Thunderbirds flight demonstration team. In the 1980's,
Nos. 1-4, were on a training flight near Indian Springs, north of
in Nevada. No. 1, the leader, called for a loop when Nos. 1-4 where in
tight, diamond formation. Those pilots can fly so close and survive
they fly using this technique: No. 1, the leader and commanding
the only one looking where the diamond is going. Nos. 2-4 look only at
fixed spot on No. 1's airplane, trusting No. 1 to not fly them into the
ground nor a mountain. Unfortunately, No. 1 apparently misjudged
whatever and failed to pull out of a loop. Nos. 2-4 dutifully impacted
ground shortly after No. 1. The nation lost four exceptionally gifted,
disciplined, pilots. The only survivors were Nos. 5 and 6, the solo
who were not operating with the diamond at that time, converting the
into a six ship arrowhead. Nos. 2-4 played "follow the leader," and it
them their lives. Nos. 5 and 6 were not playing "follow the leader,"
they survived. If Nos. 5 and 6 had been part of that formation, they,
would have dutifully impacted the ground.
Like Thunderbird pilots Nos. 2-4, you, too, are dutifully playing
the leader." By "playing," I do not intend any disrespect nor ridicule
your important, critical, cerebral work. I simply think this analogy
the Doctrine of Stare Decisis and what happened to four exceptional
is meritorious and useful. Reformulated, it is my best professional
that too many in the judiciary in the nation and in this state are too
obedient to the Doctrine of Stare Decisis and insufficiently obedient
Article VI, Section 2 of the U.S. Constitution, which is quoted below
This Constitution, and the laws of the United States which shall be
in pursuance thereof; and all treaties made, or which shall be made,
the authority of the United States, shall be the supreme law of the
and the judges in every state shall be bound thereby, any thing in the
Constitution or laws of any state to the contrary notwithstanding.
The U.S. Constitution clearly asserts that it "shall be the supreme
the land" and that "the judges in every state shall be bound thereby,
thing in the Constitution or laws of any state to the contrary
notwithstanding." You are one of those judges.
The Doctrine of Stare Decisis, however, is not mentioned in the U.S.
Constitution. It is a judicial invention.
Article V of the U.S. Constitution clearly states that all amendments
the U.S. Constitution "shall be valid to all intents and purposes, as
of this Constitution." Thus, the Bill of Rights, which are the first
amendments to the U.S. Constitution, are part of the Constitution,
the supreme law of the land, which is suppose to be binding on you.
The Second Amendment, which is, per Article V, part of the U.S.
Constitution, and, per Article VI, Section 2, part of the supreme law
land, which is suppose to be binding on you, states:
A well regulated militia, being necessary to the security of a free
the right of the people to keep and bear arms, shall not be infringed.
Arms are the only physical object mentioned in the U.S. Constitution
are protected by the most uncompromising, absolute, brightest of all
Constitutional bright lines- "shall not be infringed." Even "persons,
houses, papers and effects," specified in the Fourth Amendment, enjoy
an equivocal, balancing, weighing protection against "unreasonable
and seizures," with "unreasonable" being determined by a judge. In
the Framers clearly intended to, and did, give far greater
protection to arms than to persons, houses, papers and effects.
The Framers did this because they knew that when push comes to shove,
quill does not go "bang" like a musket does. Reformulated, they knew
privately owned, unregistered firearms, in the hands of those who
Liberty and are brave enough to use such arms as Liberty's teeth to
or to restore Liberty, are literally in a special class--a class by
themselves. This unique nature of such firearms warranted such special
protection. It is this reality that motivates every tyrant wannabee to
demonize, ban, confiscate, and destroy all private firearms.
It is difficult to shove people into ovens when they are armed. Ever
picture of an armed, naked Jew around an oven? Or in a ditch? Or
before a firing squad?
Think my reference to the Holocaust is unwarranted because "it" will
happen here? What do you think all those Jews who became bullet stops,
shades, medical experiments, fertilizer thought?
You, by your own admission, are willing to continue to play "follow
leader," per the Doctrine of Stare Decisis, despite the brief I
As you know, this state has elected some of this nation's most
advocates for more victim disarmament laws. Examples are Diane
Barbara Boxer, Grey Davis, Don Perata. None of these people seem to be
deterred by the U.S. Constitution. All seem to be hell bent on using
language as a weapon to interpret away the Constitution, liberty, and
Grey Davis, as governor, also had the audacity to publicly declare
function of the Legislature is to implement his vision and that all
must also implement his vision-- otherwise he would not promote them
select them to be judges. Why? Governor Davis claimed he has a mandate
the electorate to assert what I attribute to him. This is because he
that since he was the single greatest vote getter in the statewide
the Legislature and the Judiciary had to implement his vision.
Reformulated, Governor Davis apparently wants to erode the Doctrine of
Separation of Powers and the Doctrine of Checks and Balances.
I wonder how many judges who wish to advance their careers have
themselves to become intimidated and corrupted in the sense that they
decisions calculated to not offend Governor Davis and/or Diane
Barbara Boxer, and Don Perata.
Governor Davis made his irresponsible remarks prematurely. He
one thing: Before a tyrant wannabe can consolidate power and impose his
arbitrary will he must first disarm an armed citizenry. Governor Davis
never achieve a disarmed citizenry. Many citizens will surrender arms,
give up liberty for the false promise of security. But many will not.
who will not understand the lesson to be learned from what happened to
Southern Blacks at the hands of the KKK, what happened to European Jews
the hands of the Nazis, and what happened to Chinese at the hands of
As you know, the July 4th Declaration specified the signors' charges
against King George, III. History repeats itself. Consider the
excerpts from that immortal Declaration:
The first sentence in the brief I prepared for Mr. Smith in this case
states, "This case involves civil authority's confiscation of
Constitutionally protected private property--a handgun, and it presents
Court with an opportunity to function as a Guardian of Liberty by
Constitutional bright lines which civil authority transgressed." I had
hopes that you would be that Guardian of Liberty. I no longer have such
- He has refused to assent to laws, the most wholesome and necessary
the public good. . . .
- He has made judges dependent on his will alone, for the tenure of
offices, and the amount and payment of their salaries.
- He has erected a multitude of new offices, and sent hither swarms of
officers to harass our people, and eat out their substance. . . .
- He has combined with others to subject us to a jurisdiction foreign
our constitution, and unacknowledged by our laws; giving assent to
acts of pretended legislation: . . . For protecting them, by a mock
trial . . . . For depriving us in many cases, of the benefits of trial by jury:
- . . . For taking away our charters, abolishing our most valuable laws, and
altering fundamentally the forms of our governments: . . .
In every stage of these oppressions we have petitioned for redress
most humble terms: our repeated petitions have been answered only by
repeated injury. A prince, whose character is thus marked by every act
may define a tyrant, is unfit to be the ruler of a free people. . . .
Thunderbird No. 1 did not intentionally fly himself and three of his
command into the ground, but he did it. I am willing to accept that you
sincere in your beliefs. But, I have a duty owed to Mr. Smith to
you for cause to try to keep you from flying his rights into the
The California Supreme Court in People v. Birks (1998) 19 Cal.4th 108,
116-117, said this about the Doctrine of Stare Decisis:
"'It is, of course, a fundamental jurisprudential policy that prior
applicable precedents usually must be followed even though the case, if
considered anew, might be decided differently by the current justices.
policy, known as the doctrine of stare decisis, "is based on the
that certainty, predictability and stability in the law are the major
objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law." It is likewise well
however, that the foregoing policy is a flexible one which permits this
court to reconsider, and ultimately to depart from, our own prior
in an appropriate case. . . . "[a]lthough the doctrine [of stare
does indeed serve important values, it nevertheless should not shield
court-created error from correction."'" . . . we are the final
the meaning of the California Constitution. If we have construed that
document incorrectly, only we can remedy the mistake. . . .
This passage is like a probe, with a light, inside the minds, hearts,
and intestines of these judges. These judges, by this passage, told us
great deal of their view of the world, their role in the world, and the
place they assign for unwashed peasants, sometimes referred to as
and/or taxpayers and/or defendants and/or "We, the People."
Notice the following:
Reformulated, when judges assert that only they can determine what the
is, that only they can determine what the law means, that they are
from liability for their error, that jurors in jury trials must judge
the facts and not the law because they must accept the law per what the
trial judge says is the law [which is what the higher judges, per the
Doctrine of Stare Decisis] says is the higher law, does it not
follow that for all practical purposes we have permitted the following
happen to our nation:
- the assumed "major objectives of the legal system" are "certainty,
predictability and stability in the law.";
- Hitler, Stalin, Mao--all would desire the same thing, in their rule
nothing is mentioned about the Constitution, Constitutionalism,
civil authority tied down and under control by the Constitution's
preserving and maximizing individual liberty and rights;
- there is a tacit admission of the existence of "court-created
which signifies these judges recognize that judges are not perfect;
- these judges claimed that they are "the final arbiters of the
the California Constitution."! Really?;
- these judges claim that "only [they] can remedy the mistake!
David N. Mayer in his The Constitutional Thought of Thomas Jefferson,
0-8139- 1485-X, documented well what Thomas Jefferson, author of the
4th Declaration and third U.S. President thought of U.S. judges after
started to invent the Doctrine of Judicial Supremacy and the Doctrine
Sovereign Immunity. Mr. Jefferson called such judges "sappers." He
was alarmed. He predicted that this trend, if not stopped, would be
catastrophic for the nation. Jefferson believed that all branches of
government, and the citizenry, should have an equal say as to what is
not Constitutional. James Madison, "Father of the Constitution," and I
the fourth U.S. President, agreed with Jefferson. Thus, Jefferson and
Madison, probably the two most intellectually gifted original Founders
Framers, loathed what we now have. I share their concern. Many others
contemporaries do, too, with good cause.
- we have replaced King George, III, with a New King George--the
- we are now subjected to Judicial Despotism?
- the American Judiciary has placed itself above and against the U.S.
Constitution and above and against U.S. citizens?
- the American Judiciary is unaccountable to anyone?
- judges now dictate to citizens how they shall live regardless of
- a few thousand judges are telling 250+ million how to live, of which
about 80 million are armed?
- citizens have lost control of civil authority, including judges?
- the civic train has jumped the tracks?
- the American Judiciary is out of control?
- too much of the American Judiciary is flying us into the ground?
- a tyrant is a tyrant, regardless of how the tyrant is dressed,
of how the tyrant got his position, and regardless of what other names
tyrant prefers to be called?
As a sweeping generalization, the judiciary's anti-individual right
construction of the Second Amendment is appalling. Such construction is
reckless, dangerous, and unconstitutional. The judiciary has done to
Second what incompetent plastic surgeons would do to a beautiful
woman--convert her to a grotesque freak. Read Clayton E. Cramer's For
Defense of Themselves and the State: The Original Intent and Judicial
Interpretation of the Right to Keep and Bear Arms, ISBN 0-275-94913-3.
Cramer demonstrated that, thanks to the collective American Judiciary,
of whom broke faith with the Second Amendment, there are now literally
judicial interpretations of the Second Amendment. Reformulated, per the
Doctrine of Stare Decisis, there are now hundreds of "court-created
and not enough judges with guts who will stand up to, and for, the
Constitutional bright line and start to remedy the egregious errors
created by breaking faith with the Framers and by dishonoring the
Constitutional bright line they drew in the Second.
I am told that a wall at the California Supreme Court building in
Sacramento has an inscription similar to this paraphrase: "This abode
justice will stand as long as there are brave men willing to preserve
Question: To the extent that the judiciary fails to preserve
bright lines that separate civil authority's powers from citizen's
lines which are necessary for the preservation of individual personal
liberty and to keep civil authority from becoming a police state
post-industrial banana republic, why would--or should--brave men, risk
to protect Black Robes who occupy court houses, who undermined
greatest achievement--the U.S. Bill of Rights? If you are willing to
and to be shocked, ask a large cross section of the public that
while concealing that you are a judge.
In the thirty years since I was admitted to the Bar, I have learned of
many instances where, in my humble best professional judgment, too many
jurists, instead of honoring Constitutional bright lines, spread the
functional legal equivalent of the bubonic plaque, and call it "binding
precedent" and/or "law," whereas I experience a perversion of the real
of law, the original Constitutional Rule of Law.
The French aristocracy's failure to heed the reasonable protestations
hordes of unwashed peasants lead to the storming of the Bastille. Now
we know who won the Cold War, perhaps the greatest remaining unknown in
life time will be this: which will happen first-- civil authority will
reform itself by returning to Constitutional bright lines and stay
its Constitutional box or sufficient numbers of citizens will recognize
has been done to them in the name of "law," spit on their hands, storm
Bastille, and slit throats?
As you know, the judiciary's primary assets and weapons are its
and its persuasiveness. This is because the judiciary lacks direct
over the power of the sword and the power of the purse. The judiciary
indirectly enjoys the protection of the sword and the fruits of the
only to the extent that enough people believe the judiciary is worthy
respect because they continue to experience the judiciary to be
professional, credible, persuasive and correct.
I see growing evidence that citizens have lost substantial respect for
judiciary. This is because the judiciary increasingly functions as the
King George, III, as if the judiciary is the superior branch of
with final legal authority to determine what is legal and what is
Constitutional, with the alleged power to tell everyone else how to
if the judiciary was, and is, blessed with some modern version the
Right to rule--arbitrarily. But brave men who know, and who remember,
taste of Liberty, will not submit indefinitely to any tyrant, no matter
portrayed. Thus, I genuinely fear that we are far down the road toward
reaching a catastrophic, catalytic like, flash point triggered by the
judiciary's over cooking the fish and stinking up the room.
Please accept at face value all of the following, which is 100%
the risk of being misconstrued as being pompous or arrogant, I share
with you for your edification and growth as a judge.
I am sorry about what has happened in the Smith case, and how I
what has happened. What is stated herein is purely conceptual, not
There is a difference between a person and a person's position. My
are intended to focus on your position.
I could have written you a much shorter letter. I elected to
what I did because I give a damn, and I am trying to extend a saving
If that is naive and/or arrogant, so be it. At least I tried to do my
Some day, when Mr. Smith's case is resolved, if you are genuinely
receptive, I would love to meet with you to discuss at a high
level important issues arising from this case. I know I could benefit
your experiences and insights as a learned judge. Perhaps you might
from my insights. I would want to partake of such a discussion with you
if you would agree to a no holds barred, candid, constructive,
discussion on the merits, along the lines of a sergeant talking to a
general, after the general took off his stars and promised not to
rank later in a punitive fashion.
I would also love to make recommendations to you for resolving the
case in a cost- time effective manner. I decline to do so. This is
believe that such recommendations now would be ethically inappropriate,
might even be viewed as an attempt to extort or to pressure you, under
circumstances, to rule in Mr. Smith's favor. I mention this because I
want you to know that I thought about this carefully, to the best of my
ability, and I am doing my best to conduct myself professionally and
I sent Dr. Mark Falls, Ph.D., a copy of the July 10 transcript in the
case and asked him to share his most candid remarks. Among other
I discussed this Smith case with a friend of mine who lives in
County. My friend told me that the media has reported that
seven inmates in the Sacramento County jail have committed suicide so
this year--in jail! This fact, if it is a fact, supports Dr. Falls'
- you seemed to be focused on Mr. Smith's intention whereas I seemed
focused on Mr. Smith's history;
- history is a far more reliable indicator of a person's future
than another person's understanding of their intention;
- you had the power of the bench and the bench won--because it had the
power of the bench;
- if his understanding of your apparent emphasis on Mr. Smith's
is correct, he is afraid that, per your approach, one half of the
could, and would, deprive the other half of liberty based on fear of
they might do;
- you did not give sufficient weight to Mr. Smith's history;
- those who are truly suicidal find a way to do themselves in, no
what civil authority does to try to stop it;
- given that fact, the fact that Mr. Smith has circulated in the
population for over six months since his pistol was confiscated on
18, 2001, is strong circumstantial evidence that he was not, and is
after reading the full transcript, including all of Officer Terry's
testimony, Dr. Falls is still of the professional opinion that it would
entirely safe to return Mr. Smith's pistol to him, forthwith, without
prior restraint imposed;
- he does not understand why the city is so fixated on destroying this
confiscated gun and why you are apparently willing to go along with
based on the testimony of one law enforcement officer. This is because
are many ways of committing suicide, and Mr. Smith does not need the
confiscated gun to do it; and
- he suspects that a person who would hire an attorney to fight to get
gun back, as a matter of principle, is far removed from being a
There is a difference between a solution and a trade-off. Destroying
Smith's pistol is not a solution. It is a trade-off, and a horrible one
which shall severely alienate many citizens from the judiciary. The
judiciary cannot afford such massive alienation.
Mr. Smith's Colt Commander is charged with extreme symbolic
As George Washington said, privately owned, unregistered firearms in
hands of free men brave enough to use them to preserve and/or to
Liberty are "Liberty's teeth."
You and/or Ms. Victor might think that James A. Smith, Sr. and/or I
nut case" because we appear to be fascinated with, or fixated on,
and/or because we quote or refer to the Founders and Framers. You are
free to think what you think. Mr. Smith and I are not control freaks.
I do, however, reject Ms. Victor's fundamental orientation: this gun
be destroyed because of what Mr. Smith might do with it if it is
him, and, since she claims she is "threatened" by Mr. Smith and/or
because of our views, that her mere feelings, or perceptions of Mr.
and/or myself, make Mr. Smith and/or myself a genuine "threat" to her
to you and/or to the American Judiciary.
As Mr. Smith stated in his declaration--merely to underscore the error
Ms. Victor's "might" rationale, per Ms. Victor's own logic that she
to use against Mr. Smith, since she is a female, she is equipped to
as a prostitute; therefore, she should be treated as a prostitute
she might function as a prostitute, even absent evidence that she is a
prostitute. Alternatively, since some drivers drive recklessly, Ms.
should have her car destroyed because she might drive recklessly.
There is no cause and effect relationship between Ms. Victor's
perceptions and Mr. Smith's and/or my orientation to the issues, the
the law, and what either of us have done. Ms. Victor apparently thinks
First Amendment protects only her rights of free speech and those who
with her. Ms. Victor apparently has a low tolerance for those who
with her and is uncomfortable with countervailing logic that disturbs
world view. But, she is only another government lawyer who insists upon
perverting language and twisting rules to government's benefit. As
probably thinks that it is her professional mission to increase
civil authority's power over citizens' rights, even if she has to
the U.S. Constitution to do it.
I wonder if Ms. Victor understands the concept "the loyal opposition"?
market place of ideas"? "Tolerance" for divergent opinions?
I do not share Ms. Victor's enthusiasm for hijacking the First
she can use Free Speech to assault Mr. Smith and his rights [and me]
then claim she is threatened by Mr. Smith [and me] when we attempt to
similar logic [for illustration only] to cope with her fallacious and
My experiences with Ms. Victor, and you, reinforce my belief that this
nation, and its citizens, will be safer, and freer, when civil
wears its Constitutional collar and remains tied down by the
chains. A logical, perfect place to start is obvious: take seriously
Second Amendment's clear bright lines: " . . . the right of the people
keep and bear arms, shall not be infringed."
James A. Smith, Sr., is an unsung hero yet to be recognized by most.
could have laid down on his rights. He could have gone off the deep end
shot up something or someone. But, what did he do? He responsibly hired
lawyer. He has invested a lot of money defending a Constitutional
line that is dear to him. He invested his money to support his
He took on "the system." He did everything a good citizen should do,
most citizens will not do. I see that and understand that about Mr.
So does Dr. Falls. But you and Ms. Victor are still not satisfied. You
more hard evidence that he is not "dangerous." You give him no credit
using the law instead of a gun. When he does try to use the law, there
consensus as to what is the controlling law, which reflects how
dysfunctional this nation is.
- Who is dangerous here: Mr. Smith? Ms. Victor? You?
- Ever witness a firearm form the intent to assault a human being?
- Ever witness a human being assault another human being's rights?
- Would you and/or Ms. Victor spend a lot of money to support a
Constitutional bright line? To live up to your principles? To lock
with "the system"?
- If Ms. Victor was a Tory lawyer when Patrick Henry said, "Give me
or give me death," I wonder if she would have accused him of
suicide by Redcoat"? Of espousing "hate speech"? Of being a
"inciting a riot"?
With kindest regards, I remain,
Peter J. Mancus, State Bar No. 52606
Attorney for James A. Smith, Sr.
cc: James A. Smith, Sr.
To read the particulars in the City of Pittsburg v. James Smith Jr., including his personal sworn statement of the
incredible events leading up to his being taken into custody based on the tattling of a co-worker, click on:
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