American Flag flying upside down as signal of DISTRESS


"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
Vctorian Square
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

[Copy to]
Carol Victor, Esq.
Assistant City Attorney, City of Pittsburg
Law Offices of Linda L. Daube
454 West Napa, Suite 200
Sonoma, CA 94576

[Copy to]
Donna Wigand
Director of Mental Health Services
Mental Health Administration
Contra Costa Regional Medical Center
1340 Arnold Drive, Suite 200
Martinez, California 94553-3191


Dear Judge Flinn:

  I appeared before you in the above referenced case on behalf of respondent James Smith, Sr. on July 10, 2002. That appearance was my first and only appearance before you.
  I write to you about three interrelated concerns: recusal, continuance, and Constitutionalism.
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 put that evidence on, they have to have the right to cross- examine.

  I was professionally stunned when you made these remarks, individually and 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 sure that my ears did not deceive me, and especially not without first doing legal research to confirm my strong suspicions that, by these remarks, you 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 grant my motion, which proved to be futile.
  The District Court of Appeal in Catchpole v. Brannon (1995) 36 Cal.App.4th 237, a disqualification of a judge for cause case, declared the following.
Few more daunting responsibilities could be imposed on counsel than the duty to confront a judge with his or her alleged . . . bias in presiding at trial. The risk of offending the court and the doubt whether the problem 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 accountability for bias. . . . We hold that the issue may be raised on appeal regardless whether objection was made below. [244]

. . . the phrase "due process of law" . . . minimally contemplates the opportunity to be fully and fairly heard before an impartial decisionmaker. The presence of judicial partiality is, of course, most pernicious where-as 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 fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.'"[245]

. . . if a reasonable man [or woman] would entertain doubts concerning the judge's impartiality, disqualification is mandated. . . . "[t]he test for the appearance of impropriety is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality, and competence." [246]

. . . the sources of judicial authority lies ultimately in the faith of the people that a fair hearing may be had. Judicial behavior inimical to that necessary perception can never be countenanced and may well provide a basis for reversal even if not the product of . . . bias. [253]

[From Footnote 9] . . . the court unexpectedly took judicial notice . . . and used the . . . discrepancy . . . as a reason to question her overall credibility. The court should not have resorted to information never offered in open court without affording the parties a reasonable opportunity to meet 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.
  To go back to your original question of me, "How is the Court to react to 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 space at the hospital?," it was appropriate for you, and ethically required of you, to disclose this information to counsel. However, you should have answered 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 not given any weight nor any further consideration to this "evidence." But, you did, in violation of the norms laid out by Catchpole.

  A fair reading of the entire transcript for the July 10, 2002 hearing makes 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 officer.

  By doing what you did, I respectfully submit you logically exposed yourself to the following meritorious observations and criticisms:

  • 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 much help as possible because her case against Mr. Smith and his pistol is ultra weak;
  • you asked a legitimate question but you, in context, declined to give Mr. Smith any credit for being released early, telling me that you thought I had to call one or more witnesses from the psych emergency ward to explain why they released Mr. Smith early [or, more accurately, refused to place Mr. Smith under a 72-hour hold];
  • you did not require Ms. Victor to produce a single witness to state what you volunteered--what you gave her on a silver platter;
  • you, in effect, shifted the burden of proof on all of this, unexpectedly, 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, you logically created the reasonable impression that you were improperly helping another form of government, the City of Pittsburg;
  • that impression is reasonable and it is repulsive because you no longer are experienced as being truly impartial;
  • you improperly considered evidence that did not come from the witness 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 witness stand to examine you--forcefully, in the hearing over which you preside and make the initial final determination, which is most awkward and unsettling;
  • you put me in a position to having to call additional witnesses which I should not have to call; and
  • if your remarks about this facility are not true, you arguably directly or indirectly slandered the government licensed mental health care professionals who work at the Contra Costa Medical Facility in Martinez.
  Your remarks in this regard also cause me to ask these questions, among many others:

  • If what Judge Flinn opined about this facility is true, why is this not a serious matter that the Contra Costa grand jury should investigate?
  • What is the legitimate purpose, if any, for law enforcement officers to 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 suicide risks and/or homicide risks back into the general population, with the apparent knowledge of the local judiciary, at least to the knowledge of Judge Flinn?
  • What, if anything, has Judge Flinn and/or the Contra Costa County Board of Supervisors and/or the local print-electronic journalists, and/or the directors of this facility done about this intolerable situation? Why?
  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 determine if what you said about this facility is true or not. Face to face I talked with Carol Roberts, a supervisor at the psych emergency services facility. I told Ms. Roberts what you said. I also told her I was there simply to determine if what you said about this facility, and its professionals, is true or not true, because it impacts Mr. Smith's legitimate interests and how I represent him. Ms. Roberts told me that what you said about this facility is, "Of course it is not true! It is absurd! Ridiculous!" A man with facial 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 what she told me. She said she did not want to get involved.

  I then went to the administration for the entire facility to try to talk to the chief executive officer of the entire facility. I ended up talking with Chris Grazzini, R.N., M.S., Associate Executive Director Patient Care. Ms. Grazzini told me that based on what she knew she agreed with Ms. Roberts. She took my name and number and told me she would follow up about this with her superiors and report back to me. She told me she would soon leave on vacation and I needed to be patient.

  Today [July 30th ] I just got off the telephone with Ms. Grazzini. She told me that she was told to tell me that no one would sign anything. She also referred me to Dr. Bill Walker, who I am told is the most senior director 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 best person for me to talk to is Donna Wigand, Director, Mental Health Services, who is the most senior administrator for all of the mental health services 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 times was good and at times, poor. Ms. Wigand told me she heard and understood what I said you said about her facility. I asked her if what you said about her facility is true. She said, "Not in my opinion." The reception then went bad 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 of this letter. By doing so, I am asking her to read this letter carefully, to examine her facility's records on Mr. James A. Smith, Sr. from December 18, 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 ones who evaluated Mr. Smith on December 18, 2001, will cooperate with me so I can marshall the best defense I can for Mr. Smith.

  What you said about Ms. Wigand's facility is either true or false. If true, the entire 72- hour civil hold for alleged, or bonafide, suicide threats, appears to be a disingenuous sham in Contra Costa County. Perhaps the reason no one from this facility so far will state in writing that what you said about them is false is because they know what you said about them is true. In any case, this situation increasingly appears to be newsworthy. In that sense, subject to what Ms. Wigand and/or Mr. Smith has to say, perhaps a copy of this letter should be turned over to the Grand Jury for Contra Costa County and/or investigative reporters for major print and electronic media 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 such information in this case because it did not come from the witness stand in this case and neither Ms. Victor nor I entered into a stipulation regarding this information.

  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 is true: (1) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding. . . . (6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge 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 entertain a doubt that the judge would be able to be impartial.
  Judge Flinn, for each of the reasons stated in this excerpt from  170.1, I respectfully and regretfully implore you to recuse yourself, per Code of Civil Procedure  170.3.

  A sad fact is this: I am a person who reasonably entertains a doubt about your ability to be impartial in this case. Mr. Smith concurs. I do not share your apparent willingness to believe a law enforcement officer's testimony.

  I also do not share your apparent willingness to adhere to stare decisis when precedents are frankly unconstitutional. I also do not share your apparent willingness to lower the bar so low for alleged justification for destroying Mr. Smith's pistol.

  Should you fail to promptly recuse yourself, I will, pursuant to Code of Civil Procedure  170.3(c)(1), promptly file with the court clerk a formal, verified, detailed, objection to you continuing to serve as a jurist in this proceeding.

  Out of respect for you as a human being, and as a jurist, and, frankly, as a matter of practicality and conserving energy, I prefer to have you recuse yourself so I do not have to file a formal objection which becomes part of the court's public record.

  I understand the high premium value of an independent judiciary, if, and only if, the judiciary remains loyal to the U.S. Constitution and not above nor against the U.S. Constitution. I also understand the high premium value of attorneys who are fiercely independent and who function as zealous advocates for their clients. I trust, therefore, that you, and your fellow judges [in county and/or out of county] will refrain from penalizing either Mr. Smith and/or myself for anything arising from this communication. Regardless, it is not my function to be a mere automaton nor potted plant 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 7, 2002, which is a Wednesday. At the last hearing, on July 10, you told me that if I had any problems with witnesses to set a conference call with Ms. Victor and get a new date.

  I do have a problem with an expert witness--Mark Falls, Ph.D., a licensed mental health care expert. Dr. Falls is willing to come to court to testify 100% consistent with his sworn declaration on file with this court, but he can do so only on a Monday or a Friday, and August 7 is neither. Also, if you recuse yourself, August 7 would appear to be a bad date, and, if you decline to recuse yourself, I will file a formal, written, verified objection to you, based on cause, at or before the resumption of the hearing on August 7.

  Per the court reporter's transcript, Ms. Victor said on the record that she was going to be on vacation from July 19th through August 3rd. Thus, she is currently unavailable for me to discuss these concerns by telephone, which is why I sent her an original copy of this letter contemporaneously when I mailed a separate original to you.

  Given Concerns Nos. 1 and 2, please advise promptly how you wish to proceed 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 in the Smith case, you said:

  THE COURT: Time out. Take a time out on this point. I don't think it's of value to you. It is my interpretation of the law that the meaning of the constitution and its role in our society and the stare decisis requirement 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 a court, superiors of this court, I am bound by that finding. And also under my oath because I also took the oath to uphold, quote, the law and the law 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 position I'm advocating. I'm just saying that simply puts the entire judiciary in a bind. If those precedents conflict with the constitution and the bill of rights, you have a conflict, and it's a question of which do you follow. Do you honor your oath and follow the constitution or do you follow the stare decisis? Some people can say there's no conflict.

  THE COURT: Well, under that analysis - we're getting very academic here and probably beyond the need- but under that analysis we have to give the 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 permitted to 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 until they actually do it. That's what the right of the people to keep and bear arms shall not be infringed is all about. It says the right of the people, not the right of the state. Doesn't say the right of the national guard. The 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 judge after . . . he actually behaves in an unreasonable illegal criminal matter . . . . line drawing is for the courts to decide but only consistent with the constitutional bright lines drawn by the constitution and set forth in the constitution which includes the first ten amendments, the Bill of Rights. And the constitutional bright line here is "shall not be infringed." No prior restraint.

  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 that would be my interpretation of the constitution but I think I'm bound by their decisions, and I do find that the statute is constitutional as applied to suicide.

  This exchange between us reminds me of what happened to the U.S. Air Force's Thunderbirds flight demonstration team. In the 1980's, Thunderbirds Nos. 1-4, were on a training flight near Indian Springs, north of Nellis AFB in Nevada. No. 1, the leader, called for a loop when Nos. 1-4 where in a tight, diamond formation. Those pilots can fly so close and survive because they fly using this technique: No. 1, the leader and commanding officer, is the only one looking where the diamond is going. Nos. 2-4 look only at a 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 altitude or whatever and failed to pull out of a loop. Nos. 2-4 dutifully impacted the ground shortly after No. 1. The nation lost four exceptionally gifted, disciplined, pilots. The only survivors were Nos. 5 and 6, the solo pilots who were not operating with the diamond at that time, converting the diamond into a six ship arrowhead. Nos. 2-4 played "follow the leader," and it cost them their lives. Nos. 5 and 6 were not playing "follow the leader," and they survived. If Nos. 5 and 6 had been part of that formation, they, too, would have dutifully impacted the ground.

  Like Thunderbird pilots Nos. 2-4, you, too, are dutifully playing "follow the leader." By "playing," I do not intend any disrespect nor ridicule of your important, critical, cerebral work. I simply think this analogy between the Doctrine of Stare Decisis and what happened to four exceptional pilots is meritorious and useful. Reformulated, it is my best professional opinion 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 to Article VI, Section 2 of the U.S. Constitution, which is quoted below in its entirety.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding. [Emphasis added.]

  The U.S. Constitution clearly asserts that it "shall be the supreme law of the land" and that "the judges in every state shall be bound thereby, any 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 to the U.S. Constitution "shall be valid to all intents and purposes, as part of this Constitution." Thus, the Bill of Rights, which are the first ten amendments to the U.S. Constitution, are part of the Constitution, which is 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 of the land, which is suppose to be binding on you, states:
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.
  Arms are the only physical object mentioned in the U.S. Constitution which 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 only an equivocal, balancing, weighing protection against "unreasonable searches and seizures," with "unreasonable" being determined by a judge. In context, the Framers clearly intended to, and did, give far greater Constitutional protection to arms than to persons, houses, papers and effects.

  The Framers did this because they knew that when push comes to shove, a quill does not go "bang" like a musket does. Reformulated, they knew that privately owned, unregistered firearms, in the hands of those who cherish Liberty and are brave enough to use such arms as Liberty's teeth to preserve 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 see a picture of an armed, naked Jew around an oven? Or in a ditch? Or standing before a firing squad?

  Think my reference to the Holocaust is unwarranted because "it" will never happen here? What do you think all those Jews who became bullet stops, lamp shades, medical experiments, fertilizer thought?

  You, by your own admission, are willing to continue to play "follow the leader," per the Doctrine of Stare Decisis, despite the brief I submitted in this case.

  As you know, this state has elected some of this nation's most prominent advocates for more victim disarmament laws. Examples are Diane Feinstein, 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 rights.

  Grey Davis, as governor, also had the audacity to publicly declare that the function of the Legislature is to implement his vision and that all judges must also implement his vision-- otherwise he would not promote them nor select them to be judges. Why? Governor Davis claimed he has a mandate from the electorate to assert what I attribute to him. This is because he claimed that since he was the single greatest vote getter in the statewide election, 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 allowed themselves to become intimidated and corrupted in the sense that they render decisions calculated to not offend Governor Davis and/or Diane Feinstein, Barbara Boxer, and Don Perata.

  Governor Davis made his irresponsible remarks prematurely. He overlooked one thing: Before a tyrant wannabe can consolidate power and impose his arbitrary will he must first disarm an armed citizenry. Governor Davis will never achieve a disarmed citizenry. Many citizens will surrender arms, will give up liberty for the false promise of security. But many will not. Those 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 at the hands of the Nazis, and what happened to Chinese at the hands of the Japanese, etc..

  As you know, the July 4th Declaration specified the signors' charges against King George, III. History repeats itself. Consider the following excerpts from that immortal Declaration:
  • He has refused to assent to laws, the most wholesome and necessary for the public good. . . .
  • He has made judges dependent on his will alone, for the tenure of their 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 to our constitution, and unacknowledged by our laws; giving assent to their 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 in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people. . . .
  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 the Court with an opportunity to function as a Guardian of Liberty by enforcing Constitutional bright lines which civil authority transgressed." I had high hopes that you would be that Guardian of Liberty. I no longer have such hopes.

  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 are sincere in your beliefs. But, I have a duty owed to Mr. Smith to challenge you for cause to try to keep you from flying his rights into the ground.

  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. This policy, known as the doctrine of stare decisis, "is based on the assumption 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 established, however, that the foregoing policy is a flexible one which permits this court to reconsider, and ultimately to depart from, our own prior precedent in an appropriate case. . . . "[a]lthough the doctrine [of stare decisis] does indeed serve important values, it nevertheless should not shield court-created error from correction."'" . . .  we are the final arbiters of 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, guts, and intestines of these judges. These judges, by this passage, told us a 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 citizens and/or taxpayers and/or defendants and/or "We, the People."

  Notice the following:

  • 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 of law;
  • nothing is mentioned about the Constitution, Constitutionalism, keeping civil authority tied down and under control by the Constitution's chains, preserving and maximizing individual liberty and rights;
  • there is a tacit admission of the existence of "court-created error," which signifies these judges recognize that judges are not perfect;
  • these judges claimed that they are "the final arbiters of the meaning of the California Constitution."! Really?;
  • these judges claim that "only [they] can remedy the mistake!

  • Really?
  Reformulated, when judges assert that only they can determine what the law is, that only they can determine what the law means, that they are immune from liability for their error, that jurors in jury trials must judge only 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 necessarily follow that for all practical purposes we have permitted the following to happen to our nation:

  • we have replaced King George, III, with a New King George--the American Judiciary?
  • 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 what the Constitution says?
  • 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, regardless of how the tyrant got his position, and regardless of what other names the tyrant prefers to be called?
  David N. Mayer in his The Constitutional Thought of Thomas Jefferson, ISBN 0-8139- 1485-X, documented well what Thomas Jefferson, author of the July 4th Declaration and third U.S. President thought of U.S. judges after they started to invent the Doctrine of Judicial Supremacy and the Doctrine of Sovereign Immunity. Mr. Jefferson called such judges "sappers." He stated he was alarmed. He predicted that this trend, if not stopped, would be catastrophic for the nation. Jefferson believed that all branches of the government, and the citizenry, should have an equal say as to what is and is not Constitutional. James Madison, "Father of the Constitution," and I think the fourth U.S. President, agreed with Jefferson. Thus, Jefferson and Madison, probably the two most intellectually gifted original Founders and Framers, loathed what we now have. I share their concern. Many others of my contemporaries do, too, with good cause.

  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 the Second what incompetent plastic surgeons would do to a beautiful woman--convert her to a grotesque freak. Read Clayton E. Cramer's For The 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. Mr. Cramer demonstrated that, thanks to the collective American Judiciary, most of whom broke faith with the Second Amendment, there are now literally many judicial interpretations of the Second Amendment. Reformulated, per the Doctrine of Stare Decisis, there are now hundreds of "court-created error," and not enough judges with guts who will stand up to, and for, the Second's Constitutional bright line and start to remedy the egregious errors they 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 of justice will stand as long as there are brave men willing to preserve it." Question: To the extent that the judiciary fails to preserve Constitutional bright lines that separate civil authority's powers from citizen's rights, lines which are necessary for the preservation of individual personal liberty and to keep civil authority from becoming a police state and/or a post-industrial banana republic, why would--or should--brave men, risk life to protect Black Robes who occupy court houses, who undermined Mankind's greatest achievement--the U.S. Bill of Rights? If you are willing to learn, and to be shocked, ask a large cross section of the public that question while concealing that you are a judge.

  In the thirty years since I was admitted to the Bar, I have learned of too 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 rule of law, the original Constitutional Rule of Law.

  The French aristocracy's failure to heed the reasonable protestations of hordes of unwashed peasants lead to the storming of the Bastille. Now that we know who won the Cold War, perhaps the greatest remaining unknown in my life time will be this: which will happen first-- civil authority will reform itself by returning to Constitutional bright lines and stay within its Constitutional box or sufficient numbers of citizens will recognize what has been done to them in the name of "law," spit on their hands, storm the Bastille, and slit throats?

  As you know, the judiciary's primary assets and weapons are its credibility and its persuasiveness. This is because the judiciary lacks direct control 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 purse only to the extent that enough people believe the judiciary is worthy of 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 the judiciary. This is because the judiciary increasingly functions as the New King George, III, as if the judiciary is the superior branch of government with final legal authority to determine what is legal and what is Constitutional, with the alleged power to tell everyone else how to live, as if the judiciary was, and is, blessed with some modern version the Divine Right to rule--arbitrarily. But brave men who know, and who remember, the taste of Liberty, will not submit indefinitely to any tyrant, no matter how 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% sincere. At the risk of being misconstrued as being pompous or arrogant, I share this with you for your edification and growth as a judge.

  I am sorry about what has happened in the Smith case, and how I process what has happened. What is stated herein is purely conceptual, not personal. There is a difference between a person and a person's position. My remarks are intended to focus on your position.

  I could have written you a much shorter letter. I elected to communicate what I did because I give a damn, and I am trying to extend a saving hand. If that is naive and/or arrogant, so be it. At least I tried to do my best.

  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 intellectual level important issues arising from this case. I know I could benefit from your experiences and insights as a learned judge. Perhaps you might benefit from my insights. I would want to partake of such a discussion with you only if you would agree to a no holds barred, candid, constructive, intellectual 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 invoke rank later in a punitive fashion.

  I would also love to make recommendations to you for resolving the Smith case in a cost- time effective manner. I decline to do so. This is because I believe that such recommendations now would be ethically inappropriate, and might even be viewed as an attempt to extort or to pressure you, under the circumstances, to rule in Mr. Smith's favor. I mention this because I simply 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 ethically.

  I sent Dr. Mark Falls, Ph.D., a copy of the July 10 transcript in the Smith case and asked him to share his most candid remarks. Among other things, he said this:

  • you seemed to be focused on Mr. Smith's intention whereas I seemed to be focused on Mr. Smith's history;
  • history is a far more reliable indicator of a person's future behavior 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 intention is correct, he is afraid that, per your approach, one half of the population could, and would, deprive the other half of liberty based on fear of what 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 matter what civil authority does to try to stop it;
  • given that fact, the fact that Mr. Smith has circulated in the general population for over six months since his pistol was confiscated on December 18, 2001, is strong circumstantial evidence that he was not, and is not, suicidal;
  • after reading the full transcript, including all of Officer Terry's testimony, Dr. Falls is still of the professional opinion that it would be entirely safe to return Mr. Smith's pistol to him, forthwith, without any prior restraint imposed;
  • he does not understand why the city is so fixated on destroying this one confiscated gun and why you are apparently willing to go along with this based on the testimony of one law enforcement officer. This is because there 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 a gun back, as a matter of principle, is far removed from being a probable suicide risk.
  I discussed this Smith case with a friend of mine who lives in Sacramento County. My friend told me that the media has reported that approximately seven inmates in the Sacramento County jail have committed suicide so far this year--in jail! This fact, if it is a fact, supports Dr. Falls' views.

  There is a difference between a solution and a trade-off. Destroying Mr. Smith's pistol is not a solution. It is a trade-off, and a horrible one that 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 significance.

  As George Washington said, privately owned, unregistered firearms in the hands of free men brave enough to use them to preserve and/or to restore Liberty are "Liberty's teeth."

  You and/or Ms. Victor might think that James A. Smith, Sr. and/or I are "a nut case" because we appear to be fascinated with, or fixated on, firearms and/or because we quote or refer to the Founders and Framers. You are each 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 must be destroyed because of what Mr. Smith might do with it if it is returned to him, and, since she claims she is "threatened" by Mr. Smith and/or myself because of our views, that her mere feelings, or perceptions of Mr. Smith and/or myself, make Mr. Smith and/or myself a genuine "threat" to her and/or to you and/or to the American Judiciary.

  As Mr. Smith stated in his declaration--merely to underscore the error in Ms. Victor's "might" rationale, per Ms. Victor's own logic that she attempts to use against Mr. Smith, since she is a female, she is equipped to function as a prostitute; therefore, she should be treated as a prostitute because she might function as a prostitute, even absent evidence that she is a prostitute. Alternatively, since some drivers drive recklessly, Ms. Victor should have her car destroyed because she might drive recklessly.

  There is no cause and effect relationship between Ms. Victor's feelings or perceptions and Mr. Smith's and/or my orientation to the issues, the facts, the law, and what either of us have done. Ms. Victor apparently thinks the First Amendment protects only her rights of free speech and those who agree with her. Ms. Victor apparently has a low tolerance for those who disagree with her and is uncomfortable with countervailing logic that disturbs her world view. But, she is only another government lawyer who insists upon perverting language and twisting rules to government's benefit. As such, she probably thinks that it is her professional mission to increase civil authority's power over citizens' rights, even if she has to pervert the U.S. Constitution to do it.

  I wonder if Ms. Victor understands the concept "the loyal opposition"? "The market place of ideas"? "Tolerance" for divergent opinions?

  I do not share Ms. Victor's enthusiasm for hijacking the First Amendment so she can use Free Speech to assault Mr. Smith and his rights [and me] and then claim she is threatened by Mr. Smith [and me] when we attempt to use similar logic [for illustration only] to cope with her fallacious and dangerous reasoning.

  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. A logical, perfect place to start is obvious: take seriously the Second Amendment's clear bright lines: " . . . the right of the people to keep and bear arms, shall not be infringed."

  James A. Smith, Sr., is an unsung hero yet to be recognized by most. He could have laid down on his rights. He could have gone off the deep end and shot up something or someone. But, what did he do? He responsibly hired a lawyer. He has invested a lot of money defending a Constitutional bright line that is dear to him. He invested his money to support his principles. He took on "the system." He did everything a good citizen should do, but most citizens will not do. I see that and understand that about Mr. Smith. So does Dr. Falls. But you and Ms. Victor are still not satisfied. You want more hard evidence that he is not "dangerous." You give him no credit for using the law instead of a gun. When he does try to use the law, there is no 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 horns with "the system"?
  • If Ms. Victor was a Tory lawyer when Patrick Henry said, "Give me liberty or give me death," I wonder if she would have accused him of "soliciting suicide by Redcoat"? Of espousing "hate speech"? Of being a "terrorist"? Of "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.

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