Round 1, July 10, 2001

NCA comment:

Here we have a judge who admits that the upper courts and stare decisis issues leave him no choice but to put the Constitution aside. If ANYONE has any question about the matter of "Judicial Supremacy," or "Judicial Arrogance," this quotation should clarify their meanings:
"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 has 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."
So, your neighbor can "tattle" on you, a situation that will begin IN EARNEST August 1, 2002, and you can be deprived of your property, INCLUDING YOUR RIGHT TO DEFEND YOURSELF, with no charges being brought against you.

We await ROUND TWO."

In order to imitate as closely as possible the form presented by the Court Clerk , some form spacing is inserted by the "coder" in the form of "periods." Also, Mancus' dialogue will be in red (signifying having taken the "red pill"), and the Judge's and "Petitioner's" folks, blue (signifying having taken the "blue pill"). Certain centering problems occur because Web Pages vary in width, but that should not pose a distraction for the reader. The transcript was hand coded for Web display, so any spelling and punctuation errors in the manuscript are left uncorrected and un-noted. There are both.


CITY OF PITTSBURG,................)
............vs.........................................)..No. N02-0068
JAMES A. SMITH,.......................)

JULY 10, 2002
City of Pittsburg

Attorney At Law
Victorian Square
876 Gravenstein Ave. So., Ste. 3
Sebastopol, Ca 95472
I N D E X   O F   W I T N E S S E S
JOSEPH TERRY 3 7 27 --


I N D E X   O F   W I T N E S S E S
.........................(None in this volume)


I N D E X   O F   E X H I B I T S


Apre. 6

I N D E X   O F   E X H I B I T S


(None in this volume)


JULY 10, 2002          MORNING SESSION



   THE COURT: Unless I've missed something the only other case I have on the calendar this morning is City versus James Smith, the gun forfeiture case.
  Okay. Appearances of Counsel, please.

   MR. MANCUS: Good morning, your Honor. Peter Mancus for the respondent.

   MS. VICTOR: Your Honor, Carol Victor for the City of Pittsburg.
And Officer Joe Terry is also in the audience, your Honor.

   THE COURT: Okay. Well, this matter is a little unusual in the sense that we held a first hearing, sent the parties off to discuss and see if they could reach a resolution. I think I proposed and the City was willing to do it to release the weapons as long as they were not in Mr. Smith's possession for a period of time on a regular basis. Well, I think the understanding was he would have access to them and that failed.
   And so we're going to have to figure out today procedurally where we are. Do we start over? Is it -- you weren't here, Counsel, in the first hearing. I believe what we probably did in the first hearing because it's our usual practice is to ask for a stipulation that the police report could be used as direct evidence rather than the officer testifying essentially reading it all in. But I'm willing to set that aside if you want to proceed in a more trial-like fashion.

   MR. MANCUS: In the interest of time, your Honor, I would be willing to stipulate to that. But subject to --

   THE COURT: Your right to cross-examination. That's what we usually provide.    Okay. Do you want to call the officer for cross-examination, or would you prefer Counsel to call your client first or your witnesses first?

   MS. VICTOR: Your Honor, I did want to -- I think that the -- there's --

   THE COURT: Clarification.

   MS. VICTOR: Correct.

   THE COURT: I'll allow to you call the officer.

   MS. VICTOR: Okay, your Honor, if you can give me just a minute.
   Your Honor, the City's calling officer Joe Terry.

   THE COURT: Officer, if you would step up and be sworn.

called as a witness on behalf of the Petitioner, being first duly sworn by the Clerk, testified as follows:

   THE CLERK: Please be seated. Please state your name and spell your last name.

   THE WITNESS: Officer Joseph Terry, T-e-r-r-y.

   THE COURT: You may proceed, Counsel.

   MS. VICTOR: Your Honor, may I give the officer a copy of the petition?

   THE COURT: Sure. The petition, yeah.



   Q. Officer Terry, what's your profession?

   A. Police officer for the City of Pittsburg.

   Q. How long have you been a police officer for the City of Pittsburg?

   A. Approximately one year.

   Q. And were you on duty on December 18th, 2001?

   A. I was?

   Q. Okay. Did you receive a call to respond to respondent, James Smith's, residence?

   A. I did.

   Q. What was the nature of that call?

   A. It was a welfare check for a subject possibly wanting to commit suicide.

   Q. Okay. When you say "a welfare check," what does that mean?

   A. A welfare check on someone who's informed another department or dispatch that someone is in need of their welfare being checked on.

   Q. Okay. What were you told with regards to Mr. Smith?

   A. Our dispatch advised that Walnut Creek Police Department informed them that subject Smith was in an argument with his family, stated he was going to go home and commit suicide, showed his family a loaded magazine of a gun and then left the scene.

   Q. Were you told where the gun was located?

   A. We were.

   Q. And where was that?

   A. In the pickup truck, in his pickup truck.

   Q. Okay. Were you with any other officers on December 18th?

   A. I was.

   Q. Okay. Who were you with?

   A. Officer Ed Sanchez and Sergeant Contrello.(phonetic)

   Q. What happened when you arrived at the residence?

   A. We arrived at the residence. We located Mr. Smith's garage door opened. We proceeded up to the garage door where we found Mr. Smith insidehis garage.

   Q. And did you talk to Mr. Smith?

   A. We did speak to Mr. Smith.

   Q. What did you say?

   A. We asked him how he was feeling, basically just to check on his welfare. He stated he was in the argument, and he had stated also stating his family --

   Q. I'm sorry. He said what?

   A. He had stated that he wanted to kill himself.

   Q. Okay. Did you locate a gun at the premises?

   A. We did locate a gun.

   Q. Where was the gun? A. The gun was in the glove box of his vehicle.

   Q. Did you or did any of the other officers ask if there were other weapons in the house?

   A. We did ask.

   Q. Okay. And what was the response?

   A. He stated he did not.

   Q. Okay. Did you conduct a search of the house?

   A. We did conduct a search.

   Q. Did you locate any?

   A. We located no other weapons.

   Q. Okay. Did you place Mr. Smith on a Welfare Institutions Code hold?

   A. We did a 72-hour hold.

   Q. Okay. Officer Terry, if you could look at the petition, and attached to the petition there's a declaration and the police report is attached as Exhibit A. I think you have it in front of you.

   Did you prepare that police report?

   A. I did.

   Q. Okay. Is that a true and correct statement of the facts as you observed them on December 18th?

   A. It is.

   Q. Did you later supplement that police report?

   A. I did.

   Q. Is that also attached?

   A. It is.

   Q. Is that a true and correct --

   A. Yes.

   Q. -- statement of what occurred on that day?

   A. Yes, it is.

   Q. Okay.

   MS. VICTOR: I would move to admit Exhibit A.

   THE COURT: Any objection?

   MR. MANCUS: Meaning the police report?

   MS. VICTOR: Yes.

   MR. MANCUS: No. No objection subject to cross-examination.

   THE COURT: Right. Okay. That will be admitted.

      (Petitioner's Exhibit A, previously marked for identification, was received in evidence.)

   MS. VICTOR: Okay. Your Honor, I've concluded.

   THE COURT: We'll just use the one in the attached petition in the file as Exhibit A for everybody.



   Q. Good morning, Officer Terry.

   A. Good morning.

   Q. Would you please briefly outline the extent of your formal education beyond high school?

   A. Beyond high school?

   Q. Yes.

   A. I had approximately one year of college, Los Medanos and Diablo Valley College, and six months of training at a local police academy.

   Q. And what did you study in that one year of college?

   A. Just general education, English, math, some criminal justice classes.

   Q. Have you taken any courses in mental health?

   A. No, I haven't.

   Q. Any psychology courses?

   A. No, I haven't.

   Q. Any psychiatry courses.

   A. No, I haven't.

   Q. Did you ever attend any kind of a medical school?

   A. No, I haven't.

   Q. Have you had any training as a mental health care provider?

   A. No, I haven't.

   MS. VICTOR: Objection, your Honor. Cumulative. It's been established, his training.

   THE COURT: Well, I think there are people I guess without training that have self-trained on the job. I'll allow it.


   Q. Upon your arrival at Mr. Smith's residence at some point did you or one of the other officers arrest or place Mr. Smith in handcuffs?

   A. We did for our safety.

   Q. So the answer is "yes"?

   A. We did. Yes, sir.

   Q. How soon upon your arrival and making contact with Mr. Smith did someone handcuff him?

   A. It was immediately.

   Q. And how long had you personally observed Mr. Smith on that day before he was handcuffed?

   A. As soon as we made entrance to the garage we found Mr. Smith in the garbage, and we placed him in handcuffs. Just as soon as we saw him, maybe ten seconds.

   Q. So is this true that from the time you first saw Mr. Smith on the day in question to the time he was handcuffed you personally had observed him for ten seconds approximately?

   A. Approximately, yes.

   Q. Was Mr. -- what did you observe about Mr. Smith during those ten seconds?

   A. Mr. Smith was sitting in his garage. He was working on something in his garage. And that's about it.

   Q. Did you hear him say anything during those ten seconds?

   A. I don't remember him stating anything. He might have asked us what we were doing there. He was sitting in the garage. He was startled when we showed up.

   Q. Did you form any opinions about his demeanor based on what you observed about him during those ten seconds?

   A. No.

   Q. Did you see anything about him during those ten seconds that led you to believe that he was a danger to himself?

   A. I had not spoken to him, so I wasn't able to form an opinion at that point.

   Q. Okay. during those ten seconds did you see anything that enabled you to form an opinion that he was a danger to others?

   A. In that ten seconds I did not have a chance to speak with him, so I couldn't form an opinion at that point.

   Q. During those ten seconds did you observe anything about him that enabled you to form an opinion that he was gravely disabled?

   A. At that point I could not make that decision.

   Q. During those ten seconds did you see anything about him that ledyou to believe that he was in the process of attempting to commit suicide?

   A. Within those ten seconds, no.

   Q. Did you see anything during those ten seconds that led you to believe that he was in the process of threatening or attempting to threaten anyone else?

   A. Within those ten seconds, no.

   Q. During those ten seconds did you see him doing anything that appeared to you to be consistent with a crime and committing a crime?

   A. No. He was committing no crime.

   Q. Did he appear to be preparing to commit a crime?

   A. I couldn't tell you. I hadn't seen him prepared to commit a crime, no.

   Q. Did everything you see about him during those ten seconds appear to you to be a hundred percent consistent with lawful behavior?

   A. Within those ten seconds, yes.

   Q. Did he appear to be calm to you?

   A. When we saw him he was startled. He was in his garage, so he might have been calm before we got there. I don't know. I did not see him until we entered the garage and we startled him.

   Q. Under the circumstances in your opinion was there anything unusual or abnormal with him reacting in what you perceived to be a startled manner?

   A. No.

   Q. Were you in uniform?

   A. I was in uniform.

   Q. Were your two associate officers in uniform?

   A. They were in uniform.

   Q. The three of you were visibly armed?

   A. We were visibly armed.

   Q. Had you given him -- to your knowledge had anybody given him any advance notice that three armed uniformed -- armed law -- three armed uniformed law enforcement officers were coming?

   A. I don't know. He was on the phone when we showed up. He was speaking with the Walnut Creek police, so I don't know.

   Q. Did he appear to be drinking an alcoholic beverage?

   A. I don't recall.

   Q. Did you see any open alcoholic container?

   A. I don't believe so. I don't recall.

   Q. Did you see any evidence of an alcoholic beverage container around?

   A. I don't recall.

   Q. Did you see any evidence of any kind of prescription medicine around?

   A. I don't recall.

   Q. Did you see any kind of evidence of illicit narcotic or controlled substance around?

   A. I don't recall.

   Q. Did you have a conversation with him?

   A. I did speak to him after we placed him in handcuffs.

   Q. Okay. Did you ever arrest him?

   A. No. At no time was he ever placed under criminal arrest.

   Q. So he was simply handcuffed for your and the other officer's safety?

   A. He was handcuffed. He was detained for our safety until we could make sure the scene was secure.

   Q. Okay. And that was purely a precautionary measure, correct?

   A. It was.

   Q. And is this true he personally didn't do anything that you witnessed that gave you good cause to handcuff him.

   A. Well, for our safety knowing from the call knowing that there was a possibly a gun involved for our safety we decided to handcuff him for our safety until we could check the house make sure the scene was secure.

   Q. I understand. What I'm driving at from the time you first saw him until you handcuffed him did he make any kind of furtive gesture movement anything like that independent of what you were told by dispatch would motivate you to handcuff him?

   A. No.

   Q. That a "no"?

   A. No.

   Q. Was he dressed appropriately for time and place?

   A. He was.

   Q. He was?

   A. He was.

   Q. Did he appear to be well nourished?

   A. He appeared -- I'm not of medical staff, so I can't answer that question. From my appearance he looked fine.

   Q. Did he appear that he was able to care for himself.

   A. He appeared to be that way.

   Q. Did he appear to be gravely disabled?

   A. Within the ten seconds he didn't appear to be gravely disabled, no.

   Q. Did he appear to know where he was?

   A. He did.

   Q. Did he appear to be oriented?

   A. He did.

   Q. Did he appear to be coherent?

   A. He was.

   Q. Did he appear to understand you when you talked to him?

   A. He did.

   Q. Did he respond quickly to you when statements were made to him?

   A. He did.

   Q. Did he respond in a rational manner?

   A. He did.

   Q. Were you able to understand him?

   A. I was.

   Q. Was his speech slurred?

   A. No, it was not.

   Q. Was there anything about him that led you to believe that he was presently at that time under the influence of anything?

   A. No.

   Q. You had no problem communicating with him?

   A. No problem communicating with him.

   Q. And you shortly told him that you were there because you had received a dispatch that he had been in an argument with his family.

   A. I did.

   Q. Are you definite that you told him that he had been allegedly in an argument with his family?

   A. Yes. That's exactly what I stated to him.

   Q. Did you also tell him that he had been in an argument with his family on that day, earlier that day?

   A. That's what I was advised by dispatch, so that's what I told him.

   Q. And did you tell him that he had been in an argument with his family earlier that day in Walnut Creek?

   A. That's what I did tell him.

   Q. And when you told him that -- is this true, you did not have personal knowledge of that, you were just simply relying to him in good faith what your department's dispatcher told you?

   A. I was.

   Q. When you told Mr. Smith that he had been in an argument with his family earlier that day in Walnut Creek, did he respond?

   A. He did.

   Q. What did he tell you?

   A. He stated, "My family's crazy. My family, they are crazy."

   Q. Now, Officer, did he tell you that or did he tell you simply, "That's crazy," in context meaning what you told him dispatch told you was crazy?

   A. He stated, "My family they are crazy."

   Q. Okay. Is this correct he said, "My family they are crazy"?

   A. Mh-hm.

   Q. Did he ever other than what you just said did he ever identify who he intended to mean or refer to by "they are"?

   A. No, he did not.

   Q. Did you personally search for other firearms at his residence?

   A. We did. We did a brief search of his residence for other firearms.

   Q. Did you ask him if he had other firearms in his residence?

   A. We did.

   Q. And what did he tell you?

   A. He stated, no, he did not.

   Q. Did you believe him?

   A. I -- with the facts given that he said he had no other firearms I believed him.

   Q. But you still searched the residence for other firearms?

   A. I was just making sure.

   Q. How long did you spend searching for other firearms?

   A. Approximately maybe a minute or two. It was a brief search of just the house.

   Q. How -- what type of structure was he in? Was this a mobile home, a house, an apartment or what?

   A. He was in a residential dwelling with a garage, a regular town home with a garage I believe. Had three bedrooms, living room, dining room.

   Q. How many stories?

   A. It was a single story.

   Q. Did you personally search the entire area of the residence?

   A. We searched the residence. We did not go into drawers or we opened closet doors just to make sure for one was no one else in the residence, and for two no other visible firearms. But we did not go under mattresses or through drawers or anything.

   Q. Did you -- when he was handcuffed, was he standing when he was handcuffed?

   A. I believe he was standing, and then he was later placed outside. I was inside the residence, so I didn't see where he was placed.

   Q. Did you see him walk?

   A. He was walking. He did walk over out of the garage.

   Q. Was he able to walk without assistance?

   A. He was.

   Q. Was he stumbling?

   A. He was not.

   Q. Did he act like he was inebriated?

   A. No, he did not.

   Q. Did he have a smell of any kind of beverage on his breath?

   A. No.

   Q. Did he emit of any kind of odor?

   MS. VICTOR: Objection, asked and answered.

   THE COURT: I'm not sure I recall that. I'll allow that. Did he smell of any odor?

   THE WITNESS: No, he did not.


   Q. Did he appear to have been smoking anything?

   A. I don't recall.

   Q. Did he exhibit any signs of being any kind of a narcotic addict?

   A. No, he did not.

   Q. If he had given you any indication of being under the influence of a controlled substance, what would you have done?

   MS. VICTOR: Objection, speculative.

   THE COURT: Sustained.


   Q. Is this true, to summarize this line of questioning, he did not give you any indication of being under the influence of anything?

   A. He did not.

   Q. Meaning the answer is true, he did not?

   A. True, he did not.

   Q. Were you ever in the military?

   A. I was not.

   Q. Does the City of Pittsburg Police Department have any kind of restrictions as to what type of sidearm law enforcement officers are allowed to carry as their duty side arm?

   MS. VICTOR: Objection, relevance.

   THE COURT: Sustained. Unless you want to put in some relevant theory.

   MR. MANCUS: It's part of what is protected by the second amendment, your Honor, per United States vs. Miller.

   THE COURT: What weapons the police carry?

   MR. MANCUS: Yes.

   THE COURT: In a suicide attempt case?

   MR. MANCUS: Yes.

   THE COURT: I don't agree. Overruled. I mean sustained. The objection sustained.


   Q. Do you know law enforcement officers that carry a model 1911 design handgun?Yes.

   MS. VICTOR: Objection, relevance. THE COURT: Sustained.

   MR. MANCUS: Yes.

   Q. Do you carry a model 1911 design handgun?

   MS. VICTOR: Same objection. Relevance.Yes.

   THE COURT: Sustained.

   MR. MANCUS: Your Honor, just briefly, so can I get a basis for the objection other than relevancy?

   THE COURT: That's the basis. It's irrelevant. He didn't use a handgun. He didn't draw it. He didn't threaten with it. Unless there's an offer of proof that he did I haven't heard.


   Q. Did -- at the time during those ten seconds that you first observed Mr. Smith and he was handcuffed did you see him handling any kind of a firearm.

   A. No. I don't recall him having a firearm on him.

   Q. Did you see any kind of a firearm within his presence during those ten seconds and when you approached him?

   A. No.

   Q. Did you see during those ten seconds did you see anything that was suggestive or indicated that he was in the process of preparing to commit suicide?

   A. He was in the garage full of tools. I -- I couldn't tell you. I mean he was sitting in the middle of the garage on the phone.

   Q. Is there anything unusual about having a garage full of tools?

   A. No, there's not.

   Q. Is there anything unusual about a homeowner being in their garage?

   A. No, there's not.

   Q. Who made the decision to place him under a 72-hour hold?

   A. It was my decision.

   Q. And then you had him transported against his will to the designated facility for a psych evaluation, correct?

   MS. VICTOR: Objection. Assumes facts not in evidence.


   Q. Did Mr. Smith voluntarily agree to the 72-hour hold?
   A. I don't recall.

   Q. Did he voluntarily agree to go to the medical facility for a psych evaluation?

   A. He did not resist.

   Q. So he cooperated with you?

   A. He did.

   Q. And you did have him transported to the medical facility for this county for 72-hour hold, correct?

   A. He was, yes.

   Q. And you did fill out paperwork telling the licensed mental health care experts at that facility why the 72-hour hold was placed on Mr. Smith?

   A. We did.

   Q. And that paperwork was caused to be delivered to the California licensed mental health care experts?

   A. It was delivered with the AMR unit that took him over to the hospital.

   Q. And what's your understanding as to the time that Mr. Smith showed up at the medical facility for the psych evaluation?

   A. I don't understand your question.

   Q. What's your understanding about what time he got there?

   A. From the point he left the scene until he arrived over there I'm not sure exactly how long.

   Q. What's your understanding as to the time when Mr. Smith was taken from his residence to be taken to the medical facility to be evaluated?

   A. Are you asking the approximate time?

   Q. Yes, sir.

   A. From Pittsburg to Martinez -- I'm not sure how much traffic there was -- I mean --

   Q. No. No. I'm asking what was the time that he was physically removed from his residence to be taken to that facility?

   A. Maybe approximately 1:15, 1:20.

   Q. That's p.m?

   A. That is p.m..

   Q. And on what date, sir?

   A. 12/18/2001.

   Q. Now, I don't know if a copy of your report that you have in front of you is the same one that I have. I assume it is. But do you see on the first page of what purports to be your report the first line says "on December 19th or on 12/19/01 at 12:55 hours I was dispatched"?

   A. I do see that.

   Q. Is 12/19/01 December 19th '01, 2001?

   A. It -- that's what it states.

   Q. Is the 19th a mistake?

   A. The 19th is a mistake.

   Q. So it should be December 18th?

   A. It should be.

   Q. Is the time however correct?

   A. The time is correct.

   Q. And is it true, sir, that on the last page of your declaration the top of it line two paragraph number four you said quote, "Respondent" -- which in context means Mr. James Smith senior -- "was evaluated and released from the hospital on December 18th, 2001," closed quote?

   A. Which --

   MR. MANCUS: May I approach the witness, your Honor?

   THE WITNESS: Yes, that is correct.


   Q. Sir, showing you what is attached to the petitioner's notice of petition. There is a two-page statement which is identified it's your declaration under penalty of perjury, correct?

   A. Mh-hm.

   Q. Is that your signature on line seven of this declaration?

   A. It is.

   Q. And am I correct in assuming that you read this before you signed it and approved it under penalty of perjury?

   A. I did.

   Q. And do you agree that the respondent meaning James Smith was evaluated and released from the hospital on December 18th, 2001?

   A. I did.

   Q. And that was the same day that he was taken to the same hospital for the 72-hour hold?

   A. It was.

   Q. So in context do you agree that the California licensed mental health care professionals that you wanted to evaluate him for 72 hours agreed to release him on the same day?

   THE COURT: I think, Counsel, what you're really getting at is essentially hearsay here, but I think you've got already the mental health discharge at 4:30 that afternoon.

   MR. MANCUS: You're right. If Counsel will you stipulate that he was released at 4:30 p.m. approximately.

   MS. VICTOR: I think that fact has been --

   MR. MANCUS: December 18th, 2001.

   MS. VICTOR: -- I think that fact has been established, yes.

   MR. MANCUS: Thank you, your Honor. Thank you, Counsel.

   Q. And, Officer Terry, do you have a copy of this declaration with you there?

   A. I do.

   Q. If you could refer to it, it would make matters easier and quicker for all of us.

   MR. MANCUS: Does the Court also have a copy?

   THE COURT: I do.


   Q. Sir, looking at paragraph four of your declaration on the first page. Did you personally look at the serial number of Mr. Smith's commander and record that serial number accurately in this declaration?

   A. Actually, Officer Sanchez took custody of the gun and gave it to me, but I did look at it.

   Q. But did you at some point personally also look at the serial number?

   A. I did.

   Q. And is that an accurate -- as far as you know was that an accurate statement of that statement of the pistol's serial number?

   A. There's a difference on my property evidence sheet with the number. The second to last serial number.

   Q. You're talking about the last digit?

   A. Second to last digit.

   Q. Are you saying --

   THE COURT: That's supposed to be a five instead of a six?

   THE WITNESS: That's what --

   MS. VICTOR: Your Honor, if I may. I prepared the declaration. I must have transposed it.

   THE COURT: We're not even sure it's not right.

   THE WITNESS: I can't tell from just the copy if it's different or not.

   THE COURT: Well, can we have a stipulation that Counsel prepared the declaration and transposed or took the serial number off of his report?

   You assumed it was accurate and signed the declaration?

   THE WITNESS: I did.

   THE COURT: Whether it is or isn't is --

   MR. MANCUS: So stipulated.
   Along with that, your Honor, I would like to find out if Counsel would stipulate that the correct serial number is either the one stated in the declaration of Officer Terry or the one stated in his property evidence report.

   THE COURT: Since the weapon isn't present in the court I'm not sure she's able to make that. I mean I guess the problem is even the witness can't tell us whether the second to last digit is a five or a six.

   MR. MANCUS: Your point's are well taken.

   THE COURT: Your point is will they stipulate it's either a five or a six?

   MR. MANCUS: Yes.

   MS. VICTOR: Well, it's either a five or a six but whether that's the correct serial number or not the gun will tell and it's not here.
   Your Honor, I would also question the relevancy of this line of questioning.

   THE COURT: Yeah. I have a problem with -- if a case were otherwise proven I don't think the Court would be inclined to return a weapon because they wrote the wrong serial number on the report.

   MR. MANCUS: I agree, your Honor. I'm just -- it is relevant as to value. And also if you were to order that it be destroyed, that the correct one be destroyed not one with a different serial number be destroyed.

   THE COURT: I think the order would be the gun confiscated on December 18th from Mr. Smith.

   MS. VICTOR: Your Honor, if I may, just on the issue of value because based on the extensive briefing that was done and that is also relevant to the Court's decision.

   THE COURT: You may go ahead. There was no question pending.

   MR. MANCUS: Could I have a moment, your Honor?

   THE COURT: Yeah.

   Let me inquire are you planning on calling your client as a witness as well or any witnesses?

   MR. MANCUS: Yes, your Honor.

   THE COURT: Okay.

   MR. MANCUS: It would depend on what the Court might indicate.

   THE COURT: Well, I indicate I'll hear all the evidence people think is appropriate, but I've had my reporter working for two straight hours now without a break. So we're going to take a 15-minute recess.
(Recess taken)

   THE COURT: Okay. Further cross-examination of this witness?

   MR. MANCUS: No, your Honor. Not at this time.

   THE COURT: Any redirect examination? MS. VICTOR: Yes, your Honor. Just a few questions.



   Q. Officer Terry, you testified that you found a gun in the truck, correct?

   A. We did.

   Q. Where was the truck parked?

   A. Directly in front of the garage in the driveway.

   Q. And did -- you also testified on direct that you had told Mr. Smith that you were there on a report of suicide; is that correct?

   A. We did.

   Q. And what did he respond when you said that?

   A. He stated that he never would have told his family that.

   Q. About the suicide?

   A. About the suicide.

   Q. Did he admit that he had made the threat of suicide?

   A. He did.

   Q. What did he is?

   A. He did say he thought about killing himself.

   MS. VICTOR: No further questions, your Honor.

   MR. MANCUS: No re-cross, your Honor.

   THE COURT: You may step down.

   THE WITNESS: Thank you, your Honor.

   MS. VICTOR: Your Honor, may the officer stay in the courtroom?

   THE COURT: Yes.

   Any further witnesses from the City?

   MS. VICTOR: No, your Honor.

   THE COURT: Okay. Mr. Mancus, any witnesses?

   MR. MANCUS: Your Honor I, do have witnesses if it comes to that. But at this point even though this is --

   THE COURT: It's a trial type proceeding. You can make essentially a nonsuit motion if that's --

   MR. MANCUS: Is that agreeable with you?

   THE COURT: It is. It's proper procedure.

   MR. MANCUS: Okay. First of all, am I correct in assuming that the Court did receive and read Mr. Smith's opposition brief and the declaration attached thereto?

   THE COURT: I read it briefly.

   MR. MANCUS: Okay. I'll just briefly submit to the following and I'm sure the Court --

   THE COURT: Does Counsel have any objection to a stipulation that if Mr. Smith was called to testify, he would testify to the matters without waiving relevance objections? MS. VICTOR: Your Honor, that's -- you hit the nail on the head. There's a lot in that declaration that is completely irrelevant, but he would testify as set forth in the declaration. I would stipulate to that.

   MR. MANCUS: One thing I would like to make clear procedurally is right now my intent if I understand the Court correctly just briefly make the equivalent of a nonsuit type motion.

   THE COURT: I think that's right. I think they've rested their case, and you're entitled to -- you don't have to call any witnesses because they haven't proven anything. I'll hear you out.

   MR. MANCUS: I'll be brief, your Honor.
   51/50 starts out with a three-prong test to justify a 51/50, either a danger to himself or danger to others or gravely disabled. This officer is entitled to his opinion, and I will --

   THE COURT: I don't think his opinion is relevant. It's the Court's opinion. But let me just ask Counsel if you're pursuing any of the grounds other than danger to self?

   MS. VICTOR: Well, your Honor, the petition was filed for danger to himself, but there was a declaration filed in the court that I think contained threats against myself, the court, the judiciary in general, and also indicated that, you know, that there had been a threat of violence on the date in question.
   So I do think within the declaration there's some evidence of danger to others.

   THE COURT: Danger to others but not grave, food, clothing and shelter test?

   MS. VICTOR: No, your Honor.

   THE COURT: Okay. You may proceed.

   MR. MANCUS: Anyway, the Court knows what the test is under 51/50. And certainly the California license, California employed, or County of Contra Costa county employees, the mental health practitioners, psychologists and psychiatrists, over here nearby -- I assume that's where he was taken given the name -- they all knew why Mr. Smith was taken there. They had the paperwork from the law enforcement officers. They knew a firearm --

   THE COURT: 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 they release because of the space at the hospital?

   MR. MANCUS: Okay, your Honor, I don't have personal knowledge of that until you said that. I have no knowledge and apparently --

   THE COURT: My only knowledge is from hearing, you know, what's now probably hundreds of these cases.

   MR. MANCUS: I understand. But I'll go this much further, your Honor, somewhere here -- and it would take me maybe a minute or two to find it -- I have what I am told by my client that's not meant to waive attorney-client privilege is a copy of all of those licensed mental health provider's records on him that they made contemporaneously when he was there, and somewhere in there this is a very faithful but loose paraphrase it says not a harm to himself, not justified, not justifiable to keep him, you know, released.
   Now, I assume --

   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.

   MR. MANCUS: Well, but I understand. But this is -- I'm saying the burden of proof is on them, and I'm suggesting strongly and I'm stating at least the way I evaluate it they haven't sustained their burden of proof, their burden of proof by the statute and by a case of construing the statute is to establish by preponderance of the evidence one of three tests, and as of right now they are relying on a police officer with all due respect to the peace officer doesn't have any post high school certificate license or degree except I assume --

   THE COURT: Oh, no.

   MR. MANCUS: Except for a standard police officer.

   THE COURT: I think that they are only relying upon the police officer's perspective testimony of what occurred which includes a admission by Mr. Smith that he was considering taking his life.

   MR. MANCUS: Well, and I understand that.

   THE COURT: That it seems to me is really the only evidence that they've presented, and I haven't gone through the threats to other things. It may be in there.

   MS. VICTOR: Your Honor, the other I would point out they were advised that he had a gun in the truck by dispatch.

   THE COURT: Right. That of course the ability to perform the act.

   MR. MANCUS: I understand that. But again with all due respect to the officer any officer can take a statement in a report and under oath. Maybe it's true maybe it isn't true.

   THE COURT: Well, it's deemed true. Unless somebody contradicts it, it's the only evidence.

   MR. MANCUS: No. I understand.
   Again, Mr. Smith can and will contradict it if we have to get to that point. And his relatives will contradict a lot of other things that this officer said under oath, and they will do that under oath by way of live testimony if necessary. But still if given everything else this officer said it's certainly your power your rule to evaluate the evidence, but the officer made it clear that he was not -- he did not appear to be gravely disabled. He was appropriate as of time and place. He didn't see him committed any crime. He wasn't arrested for any criminal offense.

   THE COURT: We're not on any of that. The question, of course, is I want to be frank with you I hear a lot of these cases, and this is not an unusual case. A case where there's evidence that the Court chooses to believe -- and we don't get there yet -- but if the Court chooses to believe the evidence that he acknowledged that he was considering taking his life, what is your position as to whether the Court should infer from that or not infer from that that he's a danger to himself where would we be if that was the only evidence in a case? Because it is the only evidence in many many of these cases. Where would we be if we said, "Well, gee, they haven't met their burden" if he said that. Maybe he didn't mean it. How do I get into the head of a speaker and decide whether he means it or not? And then two weeks after I release the weapon he goes out and shoots himself?

   MR. MANCUS: Okay. Given what the Court just said I will take as guidance and I will try my best to zero in on that, your Honor.
   Even assuming for sake of argument without intending to concede anything that Mr. Smith did tell this officer that at that time he was considering or had considered suicide that was over six months ago. The California license, California employed, or County employed, experienced psychologist and psychiatrists who are mental health care experts saw Mr. Smith and examined him shortly thereafter. They did what they deemed was professionally appropriate. And with all that information --

   THE COURT: But they had some information that was different than the scene of the 51/50 didn't they? They had information that his gun had been taken away from him.

   MR. MANCUS: Well, again, per the notes that I have, your Honor, Mr. Smith per what these mental health care providers recorded appeared to be very candid and open and did not hold back anything, and they appeared to be applying the 51/50 test, and they said -- again this is a faithful paraphrase -- it's not justifiable to hold him now. They released him. And it's now been over six months since then, and Mr. Smith and all of his relatives, both his parents who care a great deal about him and both his adult children under oath and in declarations filed and served and by way of live testimony, will testify that from their personal knowledge of Mr. Smith and being at his home frequently that this officer, the other ones were at, it was Mr. Smith's routine behavior for years to keep other firearms in that residence, rifle, shotgun, handguns and it is inexplicable to them that any officer searching the residence would not find them because of where he would keep them. They weren't that hard to find.

   THE COURT: What would be their motivation in finding them and not reporting them?

   MR. MANCUS: I'm very glad you asked that question. And I don't like the innuendo and I don't know for sure but I will point this out to the Court -- and by the way I want to digress a little bit -- I'm a little uncomfortable in saying this but for whatever it's worth many years ago I used to be a deputy district attorney -- but of all the firearms Mr. Smith had at that time from the perspective of a law enforcement officer who might want a very good handgun and might have some way without the Court's knowledge of trying to get it and might perceive Mr. Smith to be an easy person who is going to lay down his rights or going to be pushed around of all the firearms he had from the viewpoint of a law enforcement officer who wanted an excellent handgun. Of the firearms that Mr. Smith had the one that would stand out by far as being the best one is the one that was confiscated.

   THE COURT: The problem with that argument the best way to do that cover up take all of them than take the pistol if you're true. Obviously there's no evidence to support that. We can be speculating.

   MR. MANCUS: But again --

   MS. VICTOR: Your Honor, if I may interject too the City's policy it destroys all handguns that are confiscated. They don't resell them. They don't keep them. They are destroyed. It's completely speechless allegations in the declaration.

   THE COURT: Well, as I said I think there would have to be some evidence.

   MR. MANCUS: I do -- again, I will submit this is frank hearsay, but I have been told by people that there are other counties in this state where allegedly handguns are destroyed, and they end up being found at crime scenes and end up being in the possession of law enforcement officers.

   THE COURT: It's my understanding there are counties that don't destroy them but because of the value either sell them or put them into the law enforcement agency's arsenal. There's no law that says they can't do that. But the question is what happens here.

   MR. MANCUS: I understand. But continuing with what the Court said. Since he's had access to other firearms for over six months and he hasn't committed suicide and there's no report that he's threatened to harm anybody or that he's tried to or he's been arrested for some crime that -- and six months more than six months is ample time to do so. And there are many other ways of committing suicide and threatening to harming others besides firearms, and he hasn't done so. And he had no prior criminal record other than a minor moving violations.
   That's all strongly suggestive that he doesn't come within any of the tests or the statutes we're operating under.

   THE COURT: Well, if that's the case that you're urging this court and all probate court which hear these matters or courts which are assigned our county you're urging the Court if it hears 50 cases and 50 people come in here and there's evidence each of the 50 six months ago threaten to take their own life but it took six months to get into the courtroom, nothing happened in the interim period, of course the gun was in the possession of the law enforcement, to release all the guns to those 50, 60 people, that's a big step.

   MR. MANCUS: I understand, your Honor. But first of all, I could be wrong, but I don't think I am, during these last six months he's still legally eligible to buy a handgun.

   THE COURT: That is the law as to all of those people.

   MR. MANCUS: A firearm.

   THE COURT: Unless they've committed a crime --

   MR. MANCUS: Yeah. And he's not barred from doing that. He does have the other firearms. There are plenty of other ways of committing suicide.
   And regarding Ms. Victor's concerns that she somehow perceives that he threatened her and the judiciary somehow because of what he put in his declaration, I totally disagree and I disagree for the following reasons: As I understand her petition analytically she's saying because allegedly "X" happened in the past she and/or the Police Department of Pittsburg are afraid that Mr. Smith might do something in the future with this handgun if it's returned to him. So he's being judged by their fear of what he might do.

   THE COURT: He's being judged by my determination of whether under the evidence he is a danger. And I think maybe that's what you should be addressing what does it mean by a danger. Does a danger mean the odds are beyond a reasonable doubt that he'll do it? Or does danger mean he's threatened it before and there's a possibility under those circumstances that he could hurt himself.
   The courts haven't yet addressed what danger means in that statute that I know of.

   MR. MANCUS: I understand what the Court said, and I think the Court's comment are certainly meritorious. And I agree with you there's no case that I know of that addresses the issue exactly as stated and framed by your Honor.
   However, I submit that the solution to that and the answer is already known and it's a very controversial one but I think it is binding on this court as stated in the opposition brief and it's the Second Amendment the way it ends, "shall not be infringed." And --

   THE COURT: Well, the statute has met Second Amendment challenges.

   MR. MANCUS: I understand and. As my brief stated real clearly and again I'm uncomfortable in saying this but I do -- it's true the analysis saying that the statute meets Second Amendment -- a Second Amendment challenge is skimpy. It's brief. It's nonmeritorious. It miss cites and misapplies the law.

   THE COURT: You left out one-sixth it's binding in the Court.

   MR. MANCUS: I disagree with your Honor on that. And the reason I disagree with your Honor on that is this and this is a situation that I think your Honor and all judges are in somewhere in the process of becoming an attorney being admitted to practice before certain courts and becoming judge. It's my understanding that all judges took an oath to uphold support and defend the U.S. Constitution against all enemies foreign and domestic. In that sense the constitution is the first police department and the controlling precedent Article Six Section Two says it is the supreme law of the land binding and all laws to the contrary it is binding on all state judges.

   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 has 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.

   MR. MANCUS: I understand, your Honor.

   THE COURT: I'm going there. Maybe we should move on.

   MR. MANCUS: I understand. But if I could just do 15 seconds on that point.
   Per stare decisis and the lower level court's precedence you're correct the precedent are against the position I'm advocating. I'm just saying that simply puts the entire judiciary in a bind. If those precedence 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: Say it again, your Honor.

   THE COURT: Under your analysis with the constitution we have to give the gun back to a murderer as well as a person --

   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, no delusion. It's illegitimate. It's hands off. You could punish and judge after the act after his -- after he behaves -- actually behaves in an unreasonable illegal criminal matter. Threatening somebody else then he can be punished.

   THE COURT: What if it's not criminal? What if the Court finds he's gravely disabled? He's talking to aliens and they are telling him to go out and shoot his mother?

   MR. MANCUS: Well, first of all, your Honor, as to --

   THE COURT: I have those cases often.

   MR. MANCUS: I understand. But I think those facts compared to the testimony from Officer Terry are clearly distinguishable. Those are not the facts here.

   THE COURT: Where the line lies between those facts and a person that threatens to kill himself that line is for the appellate courts to decide isn't it?

   MR. MANCUS: Only -- that line, 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 a suicide.

   MR. MANCUS: Okay. Again --

   THE COURT: Let's -- because that's not where we are --

   MR. MANCUS: And I thank you for letting me make the record, your Honor. And I'm almost done with this particular motion.
   Given -- well, I don't think this youthful inexperienced officer with no training on mental health whatsoever, given all of the positive things he said about Mr. Smith and given the one negative thing he said, warrants a court order or is enough carry the People's burden of proof that Mr. Smith comes in with any of the tests the statutory test he's not a harm to himself, he's not a harm to others, he's not gravely disabled, and it wouldn't be dangerous to return the firearm to him. He's already had -- he had firearms before for years. He's had them since then. He's done nothing wrong with any of them before or since. Nothing. And if he's in his early '50's if approximately 50 years of living doesn't count for something before or since not misusing a firearm then his established track record is by definition entitled to no credit. And because the City of Pittsburg Police Department and/or the City attorney had some fear because of this he might do something in the future.

   THE COURT: I think you'd have to be fair to say because the police agencies of the County of Contra Costa probably many other counties have determined that any time when someone threatens to take their life they will 51/50 that person and confiscate the weapon. I don't think it's an individual situation.

   MR. MANCUS: I'm not saying --

   THE COURT: The question six months later in my court is there any evidence beyond that from which the Court would find that he was not a danger to himself that he was perhaps just showing off or what-have-you.

   MR. MANCUS: Okay. And I agree with the Court.

   THE COURT: Or his mental state has changed.

   MR. MANCUS: I agree with the Court in that point. And I'm saying that over six months ago that one statement even if it was made it's dated it's relative ancient history. It's not today. And it's their burden of proof. They haven't offered any evidence beyond what they offered a few minutes ago as to what his status is today. It's their burden of proof.
   These county experts are within a mile or two from here. They are not here. They didn't call any other officers. There's no evidence post December 18th, 2001 irrational grave behavior. There's no evidence that he can't take care of himself. There's no evidence of somebody else seeing him acting bizarrely with a firearm or making a hangman's noose or playing with poison or making weird irrational statements threatening to kill himself harm others. He's self-sufficient. He's not on the public doles. He's not collecting welfare. He's self-sufficient.
   And how is he fighting this? He hired an attorney. He came to court. It would have been real easy for him to accept the Court's offer. "Mr. Smith, if you promise me you won't use this gun to commit suicide, you it back." Mr. Smith is one of the very few people who said "no" to that offer because in his opinion as a matter of principle with all of sincere respect to the Court from me to you and from him to you he views it as an unconstitutional prior restraint.

   THE COURT: I understand.

   MR. MANCUS: If she says I see an unsigned proposed stipulation from Ms. Victor to him and his parents saying he can have the gun back if he will agree that the gun will go to his parents for two years because she claims she has a fear of what he might do for two years, well --

   THE COURT: I think that's not fair. She claims that the evidence supports a fear of what he might do.

   MR. MANCUS: I understand.

   THE COURT: That's different. She's not trying to be the judge or be the mental health person. She's asking the Court to draw an inference from the evidence.

   MR. MANCUS: Okay. But along that same, you know, what I'm going to say is not meant to be any kind of a personal attack.

   THE COURT: Don't you worry about that. I get personal attacks all the time.

   MR. MANCUS: It's not --

   MS. VICTOR: Directed at me.

   THE COURT: -- as an adversary.

   MR. MANCUS: It's just meant to -- it's just my mind doing it's best to take that logic that train thought.

   THE COURT: You could attach it to me. I will not be offended.

   MR. MANCUS: Well, that was used against Mr. Smith against that logic. For example, pursuant to that logic Mr. Smith could say this is just for sake of illustration cars at speed are dangerous, highway carnage is well-known well-documented. The Court could take judicial notice of highway carnage. A lot of people even everybody when licensed abuse cars, sober, under the influence of things cause highway carnage. That's a risk I and others shouldn't have to take therefore I don't mean to single --

   THE COURT: That's why we take licenses away from people.

   MR. MANCUS: I know. But because of that maybe my car keys and my license or the bailiff's or the court clerk or court reporter or the city attorney's or some of the witnesses in the background should be taken away and we shouldn't individually or collectively or Joe blow grabbed off the street shouldn't be allowed to drive their car because of what others do and because of what they might do.

   THE COURT: Jurisdictions that do just that. There's jurisdictions that forfeit a car on D.U.I.

   MR. MANCUS: I understand. But the difference in that train of thought is the convicted D.U.I. manifested legitimate bona fide true criminal behavior, and they were punished for what they did, not for fear of what they might do.

   THE COURT: I understand. I think you've made an adequate argument on Second Amendment arguments.
   Here's the Court's view: The Court's going to deny the motion at this stage without prejudice. It is my view that under the evidence that I have heard the evidence establishes that I've heard so far establishes that Mr. Smith was a danger to himself on the day of the incident in that he was threatening to take his life.
   I believe that the proper inference from that evidence in this area of law is that he meant what he said and that he did indeed have a suicidal tendency at that point in time. I believe that the proper inference from that evidence is that that tendency because people don't go around putting it up on a sign board that that tendency continues absent evidence to the contrary. It is my belief that that type of evidence creates a burden shifting in that the burden at that point moves from the agency seeking to confiscate to the respondent to establish either that it didn't occur, that it wasn't real or that it changed. And based upon that I'm going to deny the motion for nonsuit.
   Now, it's ten minutes to 12. I suspect from what you've indicated you're not going to finish your witnesses in ten minutes.

   MR. MANCUS: Correct, your Honor.

   THE COURT: I assured my staff of the regular lunch hours because they make commitments. Probably the most effective thing to do would be to set it another morning after law and motion calendar which is when we usually hear these.

   MS. VICTOR: Your Honor, if I may. I have a vacation coming up starting on the 19th through the 3rd of August.

   THE COURT: How about the 7th of August?

   MS. VICTOR: Your Honor, that would work for me if it works for Counsel.

   THE COURT: Mr. Mancus, will that work for you?

   MR. MANCUS: We're talking about August 7th, your Honor?

   THE COURT: Yeah.

   MR. MANCUS: Presently it works for me, but would the Court be agreeable to this in light of the Court denying that motion and other expert witnesses could we agree to August 7th but subject to me calling the Court.

   THE COURT: If you have a problem with witnesses?

   MR. MANCUS: Yeah. To continue it.

   THE COURT: Yes. Just set a conference call with Counsel and get a new date.

   MR. MANCUS: So what time on the 7th, your Honor?

   THE COURT: Well, we set them at 9:45, but why don't we say ten, and we'll try to get to you. Today was long. I apologize to everybody to keep you so long in the morning motion calendar. Those cases were very significant cases. I apologize for the timing because we try to set these and get them out at 9:45. Let's set it at 10:00 o'clock, and we'll do our best. Sometimes we're finished 20 minutes, law and motion?

   MS. VICTOR: If I may, I prepared a very short trial brief just to meet some of the issues in the opposing papers. So if I could file that with the Court.

   THE COURT: Any objection?

   MR. MANCUS: No, your Honor.

   THE COURT: That's fine. Yeah, you can give it to the bailiff.

   MS. VICTOR: Okay.

   THE COURT: We'll be in recess on the case until August 7th.

   MS. VICTOR: Thank you, your Honor.


State of California..........)
.........................................) ss.
County of Contra Costa.)

   I, ALLISON H. SANTIAGO, Certified Shorthand Reporter, do hereby certify:
  That I am the reporter, duly appointed and sworn, who reported the above and foregoing proceedings at the time and place therein stated,
  That I reported the said proceedings; and that the foregoing pages are a full, true, complete, and correct transcript of my shorthand notes taken at said time and place to the best of my ability.


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