SMITH V. PITTSBURGH, CA: SMITH PREVAILS
Peter Mancus Reports to the world:
For awhile, I have been agonizing about, and thinking about, the dynamics of what was going on between me and Judge Flinn in the Smith case. I was concerned. My mind made me think of the movie "The Caine Mutiny." I remember the scene were the Navy lawyer who successfully defended the officers accused of mutiny verbally ripped them a new A-hole for not doing their best to support their captain, and how that lawyer character really ripped into the Fred McMurray character for setting the mutiny in motion, for then sitting back and letting it happen, for then distancing himself from it and the mutineers, and for not doing enough to support the captain and better counsel/lead the other officers who ended up being charged with mutiny. I thought about all of that and, by analogy, about how Judge Flinn, in some ways, as judge, was like the "questionable" captain against whom the mutiny was made and how I, by analogy, took to heart what the Navy lawyer said in criticism of the captain's subordinate officers: those officers could have done more to support their captain. By this analogy, I do not mean to imply that Judge Flinn was, or is, like the captain in that movie, nor that I am like any of his subordinate officers who muntinied. I just mean to say this: I thought of that movie and I thought of my duty as an officer of the court to do my best to help Judge Flinn make the right decision for the right reasons and to be cost-time effective in the process and to protect home plate for Jim Smith at the same time. Reconciling the two can often be difficult.
As I drove to court today [Dec. 11, 2002] I had a strong sense that the case at this level would end today. I was determined to do my utmost best to end it today if I could without prejudicing Mr. Smith. I really had no idea what the result would be. I was also apprehensive that I would somehow find myself held in contempt and incarcerated. If Mr. Smith lost, I certainly did not look forward to being "the goat" in the eyes of many. I dreaded that weight that I knew was hanging out there. And I ached for Smith if that happened.
We started around 10:00 a.m., before the Honorable David B. Flinn. At the beginning I told Judge Flinn that Mr. Smith and I very much wanted to end the case today and I was optimistic that would be done if I received some cooperation from him and opposing counsel, Assistant City Attorney Carol Victor, for the City of Pittsburg, CA. I made some constructive suggestions, which Judge Flinn and Ms. Victor accepted, to their credit. At various times I urged the judge to not bristle, to not get angry, to not terminate the proceedings abruptly, to just please let me make my record so I could finish my evidentiary presentation and rest my case. Along the way, I told him I was always doing my best to be a good officer of the court and a good, effective advocate for Mr. Smith, and I took exception to certain derogatory remarks Judge Flinn made about me. I assured him that his claimed ability to be able to read my mind and intent accurately was wrong. He manifested mild agitation when I said that and indicated he wanted me to move on, which I did.
Around 10:40, I rested my case after calling two witnesses who survived Ms. Victor's objections as to relevancy. These witnesss were attorney/co-owner of a gun store/Colt gun collector/expert on value Gary Cockriell [sp?] and ex-USArmy officer/armorer/1911 expert/2AM activist, Phil Graf. Gary and Phil both made major positive contributions and did well on the witness stand.
Ms. Victor argued her case for about 5 minutes. Ms. Victor argued: Mr. Smith is "dangerous" to himself and to others and his Colt Commander should be destroyed because: he uses marijuana; he drinks alcohol; he uses amphetamines; he is unemployed; he is angry; he is unrepentent [which she periodically harped on and revisited for emphasis]; he challenged authority; he apparently lacks insight; he hasn't learned anything arising from any of this; and he cannot be trusted with a gun.
When she indicated she was done with her argument, I started to stand to speak on Mr. Smith's behalf. As soon as I started to move, Judge Flinn gestured with his hand for me to remain seated while saying there was no need for him to hear from me because he was going to rule in Mr. Smith's favor.
Judge Flinn then explained his reasoning-to-result [analysis] for about 5 minutes. I listened to him carefully. A summary of what he said follows: He is very concerned about gun violence, people who are suicidal, and people who are alleged to be suicidal, or depresed, who have access to guns--those things really get his attention; he deemed it to be important that our psychiatrist [Dr. Bruce Victor--no relaltion to Carol Victor] testified that Mr. Smith is not "depressed" and there is no indication that Mr. Smith has a tendency to become "depressed"; I overtried the case, but I took the burden of proof seriously and brought in, and got into evidence, meaningful evidence which Ms. Victor did not refute; therefore, he determined that Mr. Smith is not "dangerous" to himself or to others; therefore, Mr. Smith wins; the mere fact that someone is all of the things Ms. Victor said about Mr. Smith [angry, unrepentent, challenged authority, alcohol-MJ-amphetamine user,] individually and/or collectively, does not mean that he is "dangerous" to himself or to others! He said the statutory test is: is Mr. Smith "dangerous" at the time of the latest hearing--when the judge makes his decision. The test is not whether Mr. Smith is angry, unrepent, challenged authority, uses illicit substances, etc. He also said there is no proven correlation about any of the things Ms. Victor stressed causing Mr. Smith to allegedly be "dangerous." He also said that it would be wrong to deny Mr. Smith his rights merely because some are afraid that he might abuse his rights; thus, in the absence of Mr. Smith, manifesting by his conduct, that he was "dangerous," he would not rule that he was "dangerous"!!! [That was, and is, one of my biggest arguments, which is 100% consistent with the Second Amendment--"shall not be infringed." means "no prior restraint." Hence, while the judge ruled earlier that he is bound by adverse precedent to the effect that Mr. Smith does not have an individual right to firearms, the good judge adhered to one core essence of the 2AM, and the Bill of Rights: people should be judged by their conduct, not by fear of what they might do!
Judge Flinn also said he was strongly inclined to believe that if he did order the pistol destroyed such an order would be subject to civil authority paying Mr. Smith reasonable fair market value for it, thus, it would be a form of a forced sale: if the City wanted the pistol destroyed, he would force the City to buy it from him so they could destroy it!!! That approach is 100% Constitutionally correct! And that approach should chill civil authority's appetite for insatiable destruction of Liberty's teeth.
Bottom line: Judge Flinn ordered the City of Pittsburg Police Department to return to Mr. Smith his confiscated Colt Commander, three magazines for that pistol, 22 live .45 ACP cartridges, and leather holster--everything the police confiscated. Judge Flinn ordered me to prepare the formal order, which I already did, and mailed to Ms. Victor for her review and approval.
Several people whose judgement I respect criticized me for the lengthy declaration I prepared for Mr. Smith, especially for its content and its candor regarding Mr. Smith's politically incorrect "Patriot" type political-legal views. At times, it did appear that the judge was definitely concerned about some of the things in Mr. Smith's declaration; however, Mr. Smith instructed me to be bold, to be candid, to get right in civil authority's face, to not pull any punches, to be assertive, to press the concepts contained in that declaration, etc. He wanted to win on his terms and to be a teacher: to teach civil authority and others, to inspire them and to educate them.
The fact that the judge said it would be wrong to deny Mr. Smith his rights merely because some are afraid that he might abuse his rights is 100% consisternt with Mr. Smith's declaration. Whether Judge Flinn would have had that attitude with or without Mr. Smith's declaration we will never know.
I searched a long time to find some eloquent quotes by history's notables that expressed that concept. I found about five that I was ready to use and included in a written final argument.
In light of the 9th Circuit's Silveira decision, Judge Flinn pulled us back from the abyss somewhat. While his judicial temperment along the way, and some of his reasoning and comments along the way, caused much grief, when it came down to the bottom line, he got it right, and, he got it right for all of the right reasons! The pleasant, refreshing, correlation of his getting it right, for the right reasons, is a true, deep, joy. I am proud of him. He should be proud of himself. He is a credit to the bench. He stood up to the City of Pittsburg Police Chief and to the Assistant City Attorney and told them, in effect, "No! You did not prove your case. I am not letting you wipe your ass with the Bill of Rights in my courtroom." He even overlooked Mr. Smith's use of illicit substances. I think that is somewhat amazing. He could have easily said: "The mental health experts gave insufficient weight to Mr. Smith's admitted use of illicit substances; I find he is 'dangerous' to himself and/or others. I order the pistol destroyed."
I have no way of proving it, but I also think Judge Flinn knew that Mr. Smith and I were serious about pursuing an appeal if he ruled against Mr. Smith. We were serious.
Given the way it turned out, it now appears that Judge Flinn was probably willing to rule in Mr. Smith's favor after Dr. Bruce Victor testified strongly in Mr. Smith's favor, which was also after I got into evidence the declarations of two of the govt's licensed, govt employed, mental health experts who declared under penalty of perjury that they did not admit Mr. Smith into the emergency psy evaluation ward on Dec. 18, 2001, as the cops wanted, because they determined on that date that he was not "dangerous" to himself or to others and did not meet any of the statutory criteria to justify holding him any longer. But, after getting all of that into evidence, I simply still had no confidence in my ability to read Judge Flinn's mind. I wanted to get in everything I felt prudent to get in to increase the chances of winning at that level and/or on appeal if necessary.
For those of you who have been following this case, you will recall that I earlier asked Judge Flinn to please remove himself from the case for various reasons. He said my letter to him was "inflammatory," I was "judge shopping," he did not like my advocacy style, he was not going to reward me by granting my wish, etc. At that time I asked him to confirm on the record that he really could be, and would be, fair to Mr. Smith and to me, he really would let me make a record, and not prejudice nor penalize Mr. Smith because he did not like me nor my advocacy style. He made those assurances. I could have challenged him further, but Mr. Smith and I elected not to, for various complex, subtle reasons which would take too long to explain. Even though I asked Judge Flinn to remove himself, I had a sense he was an intelligent, decent judge, and could be trusted, but I was apprehensive about that judgment call. In retrospect, our judgment call proved to be correct.
If anyone wants to write Judge Flinn a letter to thank him for his decision, his official mailing address is:
The Honorable David B. Flinn
Judge, Superior Court
Superior Court, Department 6
725 Court Street
Martinez, California 94553
- I think Judge Flinn earned an "attaboy," no disrespect intended.
- I know that many recipients of this email can write a wonderful letter. Please do so. Please!
- For those of you who do not want to take the time to write Judge Flinn, please do at least this:
James Smith, Sr. is a hero--a noble Patriot. He stood up for his principles and paid dearly for them. Example: A long time ago, he could have made it easy on himself by telling Judge Flinn, "Yes. I promise not to commit suicide if you order the release of my pistol back to me." But Mr. Smith would not promise. He viewed Judge Flinn's offer to him as an unconstitutional prior restraint against his individual right to arms which shall not be infringed. He would not yield to that condition. He would not pay verbal tribute to Judge Flinn to get his pistol back. To Jim Smith, to so yield, would have meant a vital part of his self-image would die. Mr. Smith elected "heavy liberty" to "light yoke." I admire him deeply for that.
- PRINT OUT THIS EMAIL, WRITE "THANK YOU!" ON THE BOTTOM, SIGN AND DATE YOUR NAME, AND MAIL IT TO JUDGE FLINN.
- SEND THIS EMAIL AROUND THE WORLD. [LET OUR JUDICIARY KNOW THAT WE CARE AND WE DEEPLY APPRECIATE IT WHEN THEY RULE 100% CONSISTENT WITH THE CONSTITUTION, WHEN THEY FUNCTION AS "GUARDIANS OF LIBERTY."]
I also think Mr. Smith's decision to prefer "heavy liberty" to "light yoke" is strongly suggestive that civil authority has really intensely alienated a lot of armed citizens who are digging in their heels, are seriously testy about vindicating rights, no matter what the cost. In that sense, a real revolution in the minds and hearts of some citizens has already taken place. This is telling.
To underscore Mr. Smith's deep commitment to core principles I share the following, which I am authorized to disclose. It is my understanding that Mr. Smith's entire Thanksgiving dinner came from a single can of chipped beef! And that recently his entire meals have been solely, or mostly, chipped beef! Why? He ran himself into the ground to afford legal representation. Winning without yielding was the most important thing to him. [I had no idea he was that strapped.]
Smith's parents are also heroes: they helped finance Jim's representation.
Judge Flinn, in the end, is also a hero. I am clueless if he was concerned about an appeal. I am clueless how much, if at all, he learned anything from Mr. Smith's lengthy declaration. I am just struck by, at least the coincidence, that one of the major points he made [the one in bold] is also a major point I harped on for Smith in Smith's declaration.
Today, 99.8% of all communication between Judge Flinn and myself was 100% professional, amicable, calm, which was a relief.
In the last 9 days I spent a lot of time re-working about a 160 written final argument for Mr. Smith. Given Judge Flinn's ruling, and announcement that he did not need to hear from me, I never used it, and I did not file it with the court.
After Goldwater lost his bid for the Presidency, he said something to this effect, "Well, at least my campaign avoided deficit financing." Often, the winner on the military battlefield and in the courtroom battlefield is the one who shows up well prepared or over prepared. I was simply not about to let Judge Flinn order the destruction of a Mercedes Benz type "Liberty's Teeth," namely, Mr. Smith's Colt Commander.
This case was always about far more than a hunk of metal called a pistol. It was always really about forcing civil authority to wears its Constitutional collar and to take Mr. Smith's rights seriously. That pistol is loaded with extreme symbolic import.
The following persons deserve major credit for making civil authority in this case wear its Constitutional collar and/or for helping me to help Mr. Smith: Jim [himself,] Jim's parents and adult children, atty John Wolfgram, atty John Brophy, atty Richard Stevens, atty Gary Cockerill, atty Dennis Byrne, Dr. Bruce Victor, Aaron Zelman, Phil Graf, Jim March, Cornet Joyce, Truman Wilson, David Codrea, Angel Shamaya, Clayton Cramer, Dieter Dahman, Judge Flinn, and others whose names I now regretfully cannot remember. Sorry, dear souls. No slight intended.
And now, I shall go give some high quality time to my wonderful Golden Retriever, Rose, who has been badly neglected because I devoted so much time recently to preparing for this latest court hearing in the Smith case.
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