MANCUS V. CITY OF PITTSBURG, CA
"You keep pushing against Mr. Smith, against the facts, against the law, and, more importantly, against the U.S. Constitution, which you, too, took a solemn oath to uphold, support and defend, against all enemies, foreign and domestic. I guess you do not see yourself as a "domestic" enemy of the U.S. Constitution, or, in the alternative, you do, and you do not care or you are proud of that fact, if it is a fact.
"Get your foot of my client's neck. Do it now! He, and his parents, will never wear your, or your client's, yoke.
Peter J. Mancus
Attorney at Law
876 Gravenstein Ave. So., Suite 3
Sebastopol, CA 95472
Tel: (707) 829-9050
Fax: (707) 824-1885
August 3, 2002
Carol Victor, Esq.
Assistant City Attorney, City of Pittsburg
Law Offices of Linda L. Daube
454 West Napa, Suite 200
Sonoma, CA 94576
RE: 1. CITY OF PITTSBURG v. JAMES SMITH, SR., CASE NO. NO2-0068
3. WITHDRAWAL OF CITY OF PITTSBURG'S PETITION
4. WHAT IS WRONG WITH YOUR "MIGHT" RATIONALE
5. COMPLIANCE WITH THE 5TH AMENDMENT
6. EXPERT WITNESS STIPULATION
Dear Ms. Victor:
Welcome back from your vacation. I hope it was excellent, and you return to work with your batteries recharged.
James A. Smith, Sr. was fired from his place of employment on December 18, 2001. At that time, when under stress, he was told he could not make an ethnic remark. He then said, "Why don't I go home, put a gun to my head, and pull the trigger." He then left his former place of employment, as he was told to do.
No firearm was exhibited before, during, or after Mr. Smith made his statement. Smith's statement was a rhetorical question made in frustration by a man subjected to political correctness. Smith's exasperated statement has been blown out of proportion by persons whose motives are unclear. Smith's statement is not a clear expression of a clear intent to commit suicide. It is also not a threat against anyone.
After Mr. Smith made this statement and left his ex-employer's premises, Walnut Creek PD received a telephonic report from a Dorothea Carlin, who was, and is, an administrator at Mr. Smith's ex-employer. Ms. Carlin had no personal knowledge of what really happened between Mr. Smith and the supervisor who fired him. Walnut Creek PD's report from Ms. Carlin is quoted below, verbatim, in its entirety.
ASSAULT-SIM J KERR Addr: 130 TAMICO, WC
(SAN MARCO NURSING AND REHAB) R/P:
DOROTHEA CARLIN, ADMIN REPORTS AN
EMPLOYEE HAD AN ARGUMENT WITH HIS
SUPERVISOR ABOUT 15 AGO AND HAD A
WRENCH AND HIT IT ON THE DESK. ALSO MADE
OTHER THREATENING COMMENTS.
SUBJECT LEFT IN AMERICAN MADE TAN
This report states nothing about suicide nor a firearm nor Mr. Smith's relatives.
On December 18, 2001, at about 1:00 p.m., City of Pittsburg law enforcement officers were dispatched to Mr. Smith's residence. This was because of Ms. Carlin's report to Walnut Creek PD, which was related to Pittsburg PD.
When Pittsburg PD officers arrived at Mr. Smith's residence, they observed Mr. Smith for only ten seconds before handcuffing him. During those ten seconds, Mr. Smith merely sat at a workbench in his garage, minding his own business, doing nothing illegal.
These officers told Mr. Smith that they were there to investigate a report that he had earlier told his relatives, while in Walnut Creek, that he was going to commit suicide with a gun. Mr. Smith told them that that report was bogus--he had no contact with his family members that day, and he had not threatened to commit suicide with a gun. [Mr. Smith's relatives have confirmed this in sworn declarations, copies of which are in your possession.]
Mr. Smith was sober, rational, coherent, oriented as to time and place, not under the influence of anything, appropriately dressed, well nourished, able to stand and walk on his own power without a problem, had no odor of an alcoholic beverage on his breath, and was obviously not gravely disabled. His criminal record was squeaky clean other than a few minor moving violations. No firearm was in plain sight or within easy reach of Mr. Smith.
Nevertheless, these officers interfered with Mr. Smith's liberty. They kept him handcuffed for their safety, not because of anything he said or did. They asked him if he had any firearms on the premises. He told them he had four and where they were. The officers searched where he told them the firearms were stored. Inexplicably, the officers confiscated only one firearm: one which any law enforcement officer knowledgeable about fine pistols would love to have. The officers left behind three other fine arms, even though they looked exactly where Mr. Smith told them to look.
Even though Mr. Smith was sober, rational, coherent, oriented as to time and place, not under the influence of anything, appropriately dressed, well nourished, able to stand and walk on his own power without a problem, was obviously not gravely disabled, his criminal record was squeaky clean other than a few minor moving violations, and no firearm was in plain sight or within easy reach of Mr. Smith, these officers kept Mr. Smith handcuffed and had him hauled off to the local psych emergency ward for evaluation, pursuant to Welfare & Institution Code 5150. They also confiscated Mr. Smith's Colt Commander semi-auto pistol, holster, three magazines, and twenty-two live cartridges [bullets] for that pistol, which they found locked in the glove box of his truck, which was on his driveway.
Welfare & Institution Code 5150, in part, states,
When any person, as a result of mental disorder, is a
Where is the credible evidence that Mr. Smith suffers from a "mental disorder" or "is a danger to others, or to himself . . . or [is] gravely disabled"?
danger to others, or to himself or
herself, or gravely disabled, a peace officer, . . .
may, upon probable cause, take, or cause
to be taken, the person into custody and place him or
her in a facility designated by the county and
approved by the State Department of Mental
Health as a facility for 72-hour treatment and
evaluation. . . . [Emphasis added.]
Where is the credible evidence that the officers had "probable cause" to deny Mr. Smith his liberty?
Welfare & Institution Code 5151, in part, states,
. . . Prior to admitting a person to the facility for
Welfare & Institution Code § 5152, in part, states,
72-hour treatment and evaluation pursuant to Section
5150, the professional person in charge of
the facility or his or her designee shall assess
the individual in person to determine the
appropriateness of the involuntary detention. ¶ If
in the judgment of the professional person in charge
of the facility providing evaluation and treatment, or
his or her designee, the person can be properly served
without being detained, he or she shall be provided
evaluation, crisis intervention, or other inpatient or
outpatient services on a voluntary basis. ¶ Nothing in this
section shall be interpreted to prevent a peace officer
from delivering individuals to a designated facility for
assessment under Section 5150. Furthermore, the
preadmission assessment requirement of this
section shall not be interpreted to require peace
officers to perform any additional duties other than those
specified in Sections 5150.1 and 5150.2 [Emphasis
(a) Each person admitted to a facility for 72-hour treatment
At the end of the preadmission assessment initial intake screening of Mr. Smith, before the 72-hour hold began, the county's licensed psychiatrist mental health care expert rejected this hold and released Mr. Smith back to the general population. This expert wrote in his notes, "Pt. does not present as being at acute risk to harm himself. Will d/c home." Thus, in the licensed mental health care professional's professional judgment, it was not justifiable to hold Mr. Smith because he did not present as an undue risk of harm to himself and/or to others, and he was not gravely disabled. This mental health care expert made this decision even after law enforcement told him that they took Mr. Smith into custody because he was an alleged suicide threat with a firearm.
and evaluation under the provisions of this article shall
receive an evaluation as soon after he or she is
admitted as possible and shall receive whatever treatment
and care his or her condition requires for the full
period that he or she is held. The person shall be
released before 72 hours have elapsed only if the
psychiatrist directly responsible for the person's
treatment believes, as a result of his or her personal
observations, that the person no longer requires
valuation or treatment. . . . [Emphasis added.]
Your own records show that this mental health facility discharged Mr. Smith on December 18, 2001 at 4:30 p.m.
That was well over six months ago. Mr. Smith has still not committed suicide. He has not returned to ex-employer's premises. He has not harmed anyone. He has not threatened anyone. He has not committed any crime. He is not gravely disabled.
Nevertheless, you, on behalf of your client, the City of Pittsburg Police Department, on January 17, 2001, filed a "PETITION SEEKING JUDICIAL DETERMINATION RE RETURN OF FIREARM OR DEADLY WEAPON. . . ."
Filing that petition was, and is, totally optional. The law does not require you or your client to file that petition.
In that petition, in a statement signed by you, you told the court, "9. Based upon the facts involved in the incident, the Police Department believes that the return of the confiscated firearms [plural?] is likely to present a danger to Respondent or others." Your petition, however, is skimpy on the facts. It is devoid of any credible rationale for destroying Mr. Smith's Colt Commander pistol. Your petition also fails to come to terms with what civil authority's own licensed mental health care expert, a psychiatrist, did in this case: refused to impose a 72-hour hold on Mr. Smith and discharged him home, early, because Mr. Smith did not present as an undue risk.
That mental health care expert's professional judgment has been sustained. Over six months later, Mr. Smith has still not committed suicide. He has still not committed a homicide. He has still not committed a crime. He is still not gravely disabled. And he is not a meaningful danger to himself nor to anyone.
Your petition to destroy Mr. Smith's pistol was assigned to the Honorable David Flinn, Judge, Superior Court of California in and for the County of Contra Costa. During a previous hearing, Judge Flinn told Mr. Smith that the judge would order the return of Mr. Smith's pistol to him if Mr. Smith would only promise not to commit suicide with it. Is that not a crock? If Mr. Smith made that promise and dishonored it, what would the judge's remedy, or leverage, against Mr. Smith be? Mr. Smith refused that tendered deal as a matter of high principle. Mr. Smith viewed that proposal as an unconstitutional prior restraint infringement against his individual right to keep and bear arms which shall not be infringed, as codified in the Second Amendment.
Apparently, Judge Flinn thought your petition against Mr. Smith and his pistol was, and is, weak, but he was groping for a face saving way to resolve the dispute. Apparently, instead of denying your petition outright, Judge Flinn, in an attempt to avoid having to admit that Mr. Smith's position was, and is, correct, under the law and the facts, simply could not come to terms with the idea of giving the pistol back to Mr. Smith without getting Mr. Smith to give something back in return, if only an unenforceable, worthless, face saving promise. It would thus seem that Judge Flinn found it difficult to give up his position of authority, to respect Mr. Smith's principled position, to enforce Mr. Smith's right to that pistol free of any prior restraint.
You, also, inexplicably, seem to have extreme difficulty in admitting that your client has made one or more mistakes in this case. You, too, seem to be groping for a way to resolve this dispute but only in a way that seeks to force Mr. Smith, or even his parents, to lay down on their rights and to submit to your unreasonable and unconstitutional requests of them. For example, on April 26, 2002, you wrote Mr. Smith a letter you in which you wrote the following:
. . . At the prior court hearings, the Court expressed a
It is my understanding that Mr. Smith and his parents told you "No! No deal!" Bravo for them. The City's conditions are unconstitutional prior restraint. They stink.
willingness to order the City to release the confiscated
weapon(s) to your parents' control subject to your
parents' agreement to keep the weapon(s) in their
possession for a period of two years. Such a court
order would resolve this matter and ensure that the
weapons(s) are ultimately returned to you. ¶
The City of Pittsburg is willing to agree to such an
order if your parents will submit a declaration to the Court
indicating (1) their agreement to keep the weapon(s)
in their possession and to submit to any of the Court's
orders on the matter; (2) a representation that they
legally may possess a handgun under state and federal
laws; and (3) their agreement to hold the City of
Pittsburg harmless for any claims arising from the
release of the weapon(s) into their custody. . . .
¶ The City will agree to the release of the
weapon(s) in this manner if all of the City's conditions
are satisfied. If the matter is
not resolved in this manner, the City will urge
the Court to order the destruction of the
confiscated weapon(s). [Emphasis added.]
Ms. Victor, I am convinced that if you were around in the late 1700's, and if your will prevailed, no tea would have been thrown into Boston's harbor.
Your April 26, 2002 letter is, arguably, a manifestation of extortion--attempted by you. In that letter, you blatantly threatened Mr. Smith. You told him that unless he caved into your demands, and unless his parents--who he does not control--accepted your demands, you and your client would "urge the Court to order the destruction of the confiscated weapon(s)." You also said nothing about paying Mr. Smith the reasonable fair market value of his private property even though your client wishes to destroy that private property for an alleged public purpose.
Where in the Constitution are you granted the legitimate power to communicate to Mr. Smith what you did in your letter? To try to bludgeon him and his parents into laying down on their rights and to submit to your will and your client's will? Is this routine for you and your client?
James A. Smith, Sr. does not have a "mental disorder." He did not make credible threat to commit suicide. Pittsburg's cops did not have legitimate "probable cause" to interfere with Mr. Smith's life and deny him liberty. Civil authority's own licensed mental health care professionals evaluated Mr. Smith and discharged him without slapping a 72-hour hold on him. Since December 18, 2001, Mr. Smith has not committed suicide, has not committed a homicide, has not committed any crime, and is still not gravely disabled. Inexplicably, however, you and your client persists with trying to get a court order to destroy Mr. Smith's pistol. You keep pushing against Mr. Smith, against the facts, against the law, and, more importantly, against the U.S. Constitution, which you, too, took a solemn oath to uphold, support and defend, against all enemies, foreign and domestic. I guess you do not see yourself as a "domestic" enemy of the U.S. Constitution, or, in the alternative, you do, and you do not care or you are proud of that fact, if it is a fact.
Get your foot of my client's neck. Do it now! He, and his parents, will never wear your, or your client's, yoke.
Ever hear of "the straw that broke the camel's back"? Your client's petition to destroy Mr. Smith's pistol is justifiably experienced by my client and his parents as being tantamount to oppressive crap. This crap stinks. It is a manifestation of civil authority's ill advised mission creep: to undermine individual rights because they might be abused.
CITY OF PITTSBURG'S POLICE DEPARTMENT'S WRONGFUL
MR. SMITH'S PERSONAL PROPERTY
Pittsburg's enforcers [a name for persons who wear the uniform of a peace officer who will enforce any law] on December 18, 2001 confiscated Mr. Smith's Colt Commander semi-automatic pistol, Mr. Smith's holster for that pistol, Mr. Smith's three magazines for that pistol [when it will hold only one magazine at one time,] and twenty-two of Mr. Smith's live cartridges [aka "bullets"] loaded into those three magazines.
Welfare & Institution Code § 5150, where relevant, states, ". . . may, upon probable cause, take, or cause to be taken, the person into custody . . . ." [Emphasis added.] Nothing in this code section expressly authorizes these enforcers to confiscate Mr. Smith's pistol, holster, three magazines, and/or cartridges.
The only thing this code section authorizes that law enforcement officers may take into custody is "the person," a human being. Mr. Smith's personal property [pistol, holster, magazines, and cartridges] are neither a person nor a human being.
Mr. Smith is not a person who falls within the terms of Welfare & Institution Code § 8100; therefore, that section does not support the City's continued confiscation and possession of the above referenced personal property that belongs to Mr. Smith.
Welfare & Institution Code § 8102, by its express terms, whether constitutional or unconstitutional, authorizes, at most, only the confiscation of "any firearm . . . or any other deadly weapon" in Mr. Smith's control. Section 8102, by its terms, does not authorize the confiscation of Mr. Smith's holster, Mr. Smith's extra two magazines for his pistol, and/or Mr. Smith's twenty-two cartridges.
I am unaware of any law, no matter how broadly construed, constitutional or not, that allows the City of Pittsburg's Police Department, or anyone, under color of law, to confiscate and/or to retain, Mr. Smith's holster, two magazines, and twenty-two cartridges.
Formal demand is hereby made for the immediate return to Mr. Smith, at a minimum, of his holster, two magazines, and twenty-two cartridges.
If you know of any authority that allows the Pittsburg Police Department to confiscate, and to fail to return to Mr. Smith, his holster, two extra magazines, and twenty-two cartridges, please refer me to it in writing forthwith for review and consideration.
Should you and/or your client fail to cooperate, you will force Mr. Smith to exercise his legal remedies for the return of his holster, two magazines, and twenty-two cartridges, while he resists your unconstitutional and ill-advised efforts to destroy his pistol.
Formal demand is also made for your client to return to Mr. Smith, forthwith, his Colt Commander pistol on the following grounds:
(1) Mr. Smith does not suffer from a mental disorder;
(2) Your client's enforcers did not have probable cause to confiscate it;
(3) The section they acted under is unconstitutional as applied to Mr. Smith;
(4) The county's own mental health care experts did not find cause to justify placing Mr. Smith under a 72-hour hold. Instead, they promptly released him back to the general population with a clean bill of health. Mr. Smith was, therefore, never subjected to a true 5150 hold. He was never admitted to the psych emergency ward for such a hold because it was deemed, by licensed, government, mental health care professionals, to not be necessary;
(5) You should give greater weight to the opinion of a mental health care professional than you do to a 24 year old cop who does even have a two year college degree;
(6) Mr. Smith's criminal record before and after December 18, 2001 was and is squeaky clean, except for a few minor moving violations and that record is entitled to great weight, because one's history is far more important than another's fear of what they might do;
(7) Mr. Smith should be judged by his behavior and not by what others attribute to him;
(8) Welfare &Institution Code § 8102 is unconstitutional on its face and as applied for the reasons stated in my brief;
(9) Dr. Falls, Ph.D., is an experienced, competent, ethical, clinical psychologist who examined Mr. Smith in early July, 2002 who opined in writing, under oath, that Mr. Smith is not suicidal, is not a threat to anyone, is not gravely disabled, and it would not be dangerous to release to him his pistol without any prior restraint imposed;
(10) Every licensed mental health care professional who has examined Mr. Smith--county employees on December 18, 2001 and Dr. Falls about six months later, individually and collectively, agrees that Mr. Smith is not a danger to himself, is not a danger to others, and is not gravely disabled;
(11) More than six months after December 18, 2001, you still do not have any mental health expert who has stated that Mr. Smith is a danger to himself, to others, is gravely disabled, and/or it would be dangerous to return his pistol to him;
(12) Judge David Flinn was willing to return Mr. Smith's pistol to him if Mr. Smith would simply promise to not commit suicide with it;
(13) All of Mr. Smith's immediate family members [parents and adult children] have submitted sworn declarations stating that they want the pistol returned to Mr. Smith without any prior restraint imposed;
(14) Your invented "might" rationale [namely, Mr. Smith's pistol should be destroyed because he might misuse it if its returned to him] is non-meritorious and unconstitutional;
(15) Everything you are trying to do against Mr. Smith is unconstitutional and in derogation of his rights, which he will enforce to the utmost of his ability;
(16) Even Officer Terry, your sole witness against Mr. Smith, testified that when he observed Mr. Smith on December 18, 2001, Mr. Smith appeared to be normal, was not gravely disabled, did not commit any criminal act, was not handling a firearm, and did not appear to be taking any steps to commit suicide;
(17) Mr. Smith does not need the confiscated firearm returned to him to commit suicide;
(18) Mr. Smith has had more than six months to commit suicide and still has not done so;
(19) Mr. Smith's history and behavior are entitled to far more weight than anything anyone claims Mr. Smith said;
(20) You and your client are abusing the Welfare and Institution Code to try to justify confiscating and destroying Mr. Smith's pistol, in contravention of his rights, just as the Soviet Union, and other totalitarian regimes before it and since, have used spurious psychological disorders to try to justify incarcerating human beings, destroying human beings' lives, and denying human beings their liberty and/or property;
(21) What you and your client are attempting to do violates vital portions of the U.S. and California's Constitutions, so much so that what you are doing is becoming increasingly despicable, unconscionable, and insufferable;
(22) Whether you realize it or not, to the extent that you and your client inexplicably persist with your current course of conduct, you invest Mr. Smith's pistol with growing symbolic significance, making it a rallying point and a potential, if not actual, symbolic martyr for the cause of individual liberty and the Spirt of 1776. Destruction of Mr. Smith's pistol will crystallize increased massed alienation from civil authority and its agents;
(23) Mr. Smith would not spend money on legal fees to enforce his rights to this firearm and to discharge his duty to uphold the U.S. Constitution against all enemies, foreign and domestic, unless he cared about the future and intended to remain among the living, which is 180 degrees opposite from being suicidal;
(24) If you secure a court order ordering that this pistol be destroyed, you only win Round One, and winning Round One is another dangerous step toward losing a much greater battle--the PR battle for the hearts and minds of armed citizens who intensely and virulently loathe what you and your client are doing;
(25) Mr. Smith will appeal an order to destroy his pistol because he is committed to his cause--the cause of Constitutionalism; and
(26) The only way you and your client can really win the PR battle I referenced is to admit that you and your client are wrong, withdraw your petition to destroy Mr. Smith's pistol, and return it to him forthwith, with no strings attached.
You need to think about this prudently. A certain segment of the population have had it with civil authority's unconstitutional, oppressive, arrogant, rogue, illegal, behavior.
Your client is guilty of the tort of wrongful exercise of dominion and control, under color of law, over my client's specified private property. Remedy this wrong forthwith.
WITHDRAWAL OF CITY OF PITTSBURG'S PETITION
Please carefully review the opposition brief I filed on behalf of Mr. Smith, the sworn declarations of his immediate family members, the sworn declarations of his expert witnesses, what I communicated above, and the transcript of the July 10, 2002 hearing in this case. After going through that drill, please inform the court that your client withdraws its petition to destroy Mr. Smith's pistol and supports Mr. Smith's demand that his pistol, holster, magazines, and cartridges be returned to him forthwith without any prior restraint imposed.
I have no desire to waive my privileged attorney work product and analyze this information for you in extreme detail at this time. I do observe, however, the following:
first, Mr. Smith's natural biological mother, the one who carried him for nine months, who nurtured him for eighteen years and more, who sacrificed for him for his entire life, one of the ones who knows him best and who would be most intensely adversely affected if he did commit suicide or harmed another, per her sworn declaration, made it clear that she supports her son's position in this case. This fine lady wants his pistol returned to him forthwith without any prior restraint imposed. I trust as a female, who might be a mother or who at least has many lady friends who are mothers, you can place yourself in Mr. Smith's mother's shoes and give full weight to her sworn declaration. [Note: It is my understanding that Mr. Smith's mother is far more worried about him riding a motorcycle than about him having access to a firearm. Think about that.]; and
WHAT IS WRONG WITH YOUR "MIGHT" RATIONALE
second, have you ever heard of anyone who was a bonafide suicide risk caring about an intangible known as a Constitutional bright line? Spending a substantial sum on legal fees to support, defend, and enforce that intangible? To honor an oath to uphold, support, and defend the U.S. Constitution against all enemies, foreign and domestic? Think! Mr. Smith does not need the confiscated pistol to commit suicide. Mr. Smith cares about an intangible known as a Constitutional bright line and has invested a substantial sum on legal fees to support, defend, and enforce that intangible, because . . . .? Why? Answer: Because he cares about Constitutionalism, where that line is drawn, the present, the future, the world he, his children, his parents, and others will live in, and he intends to stick around for, guess what? . . . the future!
You and your client, the Pittsburg Police Department, have approached this case debilitated by a non-meritorious rationale, one that I dub "The `Might' Rationale." I coin this phrase because you and your client apparently have a certain mind set toward Mr. Smith and his pistol. That mind set relies upon this premise: Since some people misuse firearms to commit suicide or homicide, and since the police received a report that Mr. Smith threatened to commit suicide with a pistol, and since Mr. Smith [allegedly] said he was thinking about suicide, Mr. Smith is a bonafide, on-going suicide risk and/or homicide risk; that risk is on-going and will forever remain perpetual; therefore, his pistol should be destroyed; and nothing in the U.S. nor California's Constitutions exists to keep your client from destroying this pistol without having to pay Mr. Smith reasonable fair market compensation for it.
That premise is non-meritorious for the reasons that follow:
- Might, in this context, is nothing more than a synonym for the idea that anything is possible.
- Just because anything is possible does not mean it is probable.
- Might is not a Constitutionally legitimate, recognized term nor standard for denying anyone a right.
- Might is also not a legitimate, recognized, professional mental health care provider's term.
- Per the U.S. Constitution, and common sense, it is axiomatic that citizens must be judged by their behavior [what they do,] not by what they might do and not by what one or more others think, or fear, that they might do.
- Might, being a synonym for anything is possible, means that everything and everyone is a risk.
- When everything and everyone is a risk, there is no meaningful discrimination among risks. Per a system of governance where there is no meaningful discrimination among risks, all meaningful risks are reduced and all minor risks are increased, to the point where everything is the same--no risks.
- A state of no risks means an illusory state of security exists.
- An illusory state of security is a state of insecurity.
- Per your world view and your client's world view, apparently there is only one basis for meaningful discrimination among risks: government employees who are armed are an acceptable risks; non-government employees who are armed are not an acceptable risks. If this is your world view and/or that of your client, I reject it. I view that distribution of risks to be another name for a police state, which is intolerable.
You, and your client, do not have any legitimate, legally recognizable, Constitutionally legitimate, right to be free from fear of what Mr. Smith might do with his pistol, at least not before he actually misuses it in a manner that is civilly negligent and/or criminally unconstitutional, neither of which has happened.
- While it might be a fact that you and your client are genuinely afraid of what Mr. Smith might do with his pistol, that fact, if it is a fact, does not mean that Mr. Smith is a bonafide threat--to you or to anyone.
- You and your client are accountable for your perceptions of reality, not Mr. Smith.
- Your and your client's perceptions of reality may or may not be accurate. Accurate or not, they are merely one mirror, at best, of reality and they are not in and of themselves, reality. Those perceptions are not the law. They do not replace the U.S. Constitution.
- Per your might rationale, half the population would endlessly be trying to incarcerate the other half. These halves would shift forever in endless struggle, which would promote needless violence, loss of life, and catastrophic destruction to the infrastructure. Undertakers, criminals, and loiters might enjoy this system. The Framers, however, foresaw the problems inherent with judging people by fear of what they mightdo. Might is simply too arbitrary, too subjective. Thus, the Framers gave us Constitutional bright lines. It is imperative that civil authority stays within its Constitutional box. Hence, you and your client must get back into your Constitutional box and stay there.
- There is no logical, legitimate, Constitutionally permissible, cause and effect relationship between Mr. Smith's behavior and how you and your client view him and are treating him.
- Might, and perceptions, are extraordinarily elastic, malleable, fickle, and transitory. Might is like the perception of beauty or the hole that does not remain in water after one removes his hand from the water. Thus, might is a horrible foundation upon which to build a system of governance between civil authority's power and citizen's rights.
Per might, you and your client would be at meaningful risk whenever anyone else perceived you or your client to be a threat to their interests or rights.
- Might is just another disguise for the bankrupt, unconstitutional, dangerous, totalitarian notion that collective rights [aka, mob rule] trump individual rights.
- The U.S. Constitution is still the supreme law of the land. It, and only it, is the supreme law of the land, regardless of how even the U.S. Supreme Court interprets it or any judge in Contra Costa County.
- "The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when adopted it means now. . . ." South Carolina v. U.S. (1905) 199 U.S. 437, 448.
- The U.S. Constitution is another name for the original precedent, the controlling precedent. Again, it is the supreme law of the land. Nothing trumps the U.S. Constitution.
- Stare decisis is a judicially invented doctrine which suffers from serious limitations which some jurists, and lawyers, have seriously abused to interpret away the U.S. Constitution or to distort it beyond recognition.
Technically, we have a federal system of government where government, at all levels, is a servant government, responsible to the sovereign people, who, ultimately, wield absolute power, yet, are supposed to wield such power while staying within the Constitution's bright lines.
- The Constitution, via bright lines, sets forth limits on civil authority's enumerated powers and declares citizens' rights.
- Citizens' rights cannot Constitutionally be disabled by mere legislation and/or because others fear what another might do with their rights. This is because nothing trumps the U.S. Constitution; otherwise, the U.S. Constitution would not be the supreme law of the land.
- Per the U.S. Constitution, the people have the ultimate power, civil authority is a servant government, the people are government's master, each branch of government at all levels is enabled to exercise certain finite, enumerated powers which are heavily restricted by the U.S. Bill of Rights.
- Civil authority's powers to promote the general welfare stop at the Bill of Rights because they are confined by the Bill of Rights.
- Mr. Smith, by virtue of being a living human being, as declared in the July 4th, 1776 Declaration, enjoys certain inalienable rights which neither you, your client, nor any judge can Constitutionally take away from him.
- You, your client, and some Contra Costa County judges might think you each function in Contra Constitution Land. If so, you are each are wrong.
- The Constitution is the will of the people; it is the people speaking. It is the controlling rule book.
- The majority that still counts is the one that came together to ratify the U.S. Constitution and the Bill of Rights--back in the 1700's, not any local majority in California nor Contra Costa County.
- To override the controlling majority, the one that came together in the late 1700's, civil authority will have to blatantly ignore and/or suspend the Constitution, which will be contested by force of arms.
- Today, all rights are being seriously eroded and violated.
- Most of civil authority is not following the rule book--the U.S. Constitution.
- Mr. Smith, as a U.S. citizen, can do anything--repeat, anything, as long as there is no valid, Constitutional law against it.
- Civil authority cannot do anything unless it is authorized, Constitutionally, to do it.
- The U.S. Constitution is all that stands between the people, civil authority, and tyranny.
- Civil authority is not truly benevolent. It does not always have the public's interest upper most in its mind. If it did, it would admit when it is wrong. Civil authority, however, demonstrates over and over and over, ad nauseam, that it has difficulty admitting that it is wrong. Civil authority does not always wear the white hat. Instead, civil authority is force. No government has ever surrendered its power voluntarily. In that sense, government is the enemy of freedom.
- Mr. Smith is only asking you, your client, and the judge to follow the rule book--the Constitution, but you, your client, and the judge have declined to do so.
- You obviously felt so comfortable with deviating from the original Constitutional Rule of Law that you threatened Mr. Smith in your April 26, 2002 letter to him. You tried to bully him into submission, to surrender one right to try to protect what should never have been placed in jeopardy in the first place. Yet, when Mr. Smith responsibly uses the First Amendment to protest your behavior, you assert that he has threatened you and the judiciary. You are fortunate that the standard for which you advocate--might--is not the law. If it were, you would be incarcerated. Your car keys would be taken away and given to your parents for two years or, in the alternative, your car would be destroyed.
- I do not care what you, your client, and all of civil authority does to the Second Amendment. Regardless of what you do, it shall always state what it states. It shall always state that ". . . the right of the people to keep and bear arms, shall not be infringed." It will never say the right of government. The right of the state. The right of the police. The right of the armed forces. The right of the National Guard. It clearly does not state that one must be a government employee to have this right. "Shall not be infringed" means no prior restraint. Reformulated, Mr. Smith must be judged by his behavior, not by what some fear he might do. Thus, the Second guarantees an individual right, regardless of what any branch of government at any level says to the contrary.
- Ignoring the U.S. Constitution and the Bill of Rights has created a vast array of problems. Civil authority's deviation from Constitutional bright lines, with the complicity of shifting, fickle majorities, has gotten us into serious trouble.
Much of our problems would disappear if we, as a nation, returned to the original Constitutional Rule of Law, followed the Constitution's bright lines, and stayed within those lines, using those lines as markers to co-exist harmoniously, even if we disagree.
- Today, we suffer under perpetual, government manufactured, crises--one after another. Simultaneously, we are waging the War Against Crime, the War Against Drugs, and the War Against Terrorism. Wars with no boundaries. Wars with no finite, objective, quantifiable, measurable, goals. Wars calculated to have no clear victory. Wars without end. Wars calculated to whip the public into hysteria to surrender liberty and the Bill of Right's protections. Each of these wars are phoney. They are bogs. These wars are the Republic's death traps.
- The War Against Terrorism is a terroristic War Against Freedom in the guise of being a War Against Terrorism. Gun control is people control in the guise of control. People control is control. Control is control.
These wars, these bogs, these death traps, and gun control are horrific political ploys calculated to trick citizens into surrendering Mankind's greatest achievement: the U.S. Bill of Rights.
- Benjamin Franklin was, and is, correct: He who would surrender Liberty for Security deserves neither.
- The best way to achieve security is to remain faithful to the Founders' and the Framers' vision: to honor the Constitution's bright lines, to take individual rights seriously, and to keep civil authority tied down by the Constitution's chains.
- You, many lawmakers, and many law enforcers, sadly, apparently disagree with my orientation. That disagreement, however, is not proof nor evidence that my orientation is wrong.
- When civil authority violates the rule book, the Constitution, the responsible thing for a responsible, free citizen to do, such as Mr. James A. Smith, Sr., is to object, to stand up, to be heard, and to do his utmost best to responsibly and non-violently, resist civil authority's violation of the rule book.
- You give Mr. Smith no credit for what he has done: he has remained non-violent, and he has championed the cause of Constitutionalism. Yet, inexplicably, you still criticize him, and you do your utmost best to try to portray him as a threat to you and to the judiciary. You also try to hijack the First Amendment and claim it for yourself so you can use it as a sword against Mr. Smith while trying to deny him the right to use it as a shield against your sword.
- You, by your behavior and your statements, are a classic example of how far civil authority and its agents are willing to go to achieve its agenda. You, and too much of civil authority, are not deterred by the Constitution, by rights, by logic.
- Sadly, your example is repeated on a daily basis in this nation, hundreds of thousands of times, ad nauseam.
- When society's institutions fail to stop civil authority's insufferable abuse of its powers, it is incumbent upon the militia to fulfill its Constitutionally sanctioned, legitimate role: put the Constitutional collar back on civil authority's neck, and tie it down to a stake with the Constitution's chains, including by force if necessary.
- If you disagree with the last bullet point, you should read carefully the July 4th, 1776 Declaration.
- We [the nation] have come full circle. The Minutemen who fired upon Redcoats at Concord Bridge put their collective foot down in opposition to the King's alleged Divine Right to rule absolutely and arbitrarily. After the King's Redcoats were defeated, the Framers and the Ratifiers erected a bulwark against absolute and arbitrary rule--the U.S. Bill of Rights. The primary purpose of that Bill was, and is, to deny civil authority the functional equivalent of Divine Right to rule absolutely and arbitrarily. But the rights codified and guaranteed in that Bill are under serious, sustained attack. Civil authority has invented doctrines to undermine the rule book. Stare decisis is one of those doctrines. Judicial Supremacy is another. Sovereign immunity is another. Per these doctrines, and more, civil authority is doing it utmost best to undermine and get out from under the U.S. Constitution. When the Bill goes, we are back to the days of Divine Right.
- Who, in their right mind, upon mature reflection, really wants to return to the days of Divine Right?
- The Second Amendment is the only Amendment that has a clear, absolute, negative command: ". . . the right of the people to keep and bear arms, shall not be infringed."
- That command is the Constitution's brightest bright line.
- Unlike the First Amendment's "Congress shall make no law . . . .," the Second is not limited to Congress. The Second, per its clear text, applies to all levels of all civil authority. The combined might of all of the world's governments, armed forces, and police departments, can never change the Second's text. The Second's text states what it states.
- Right or wrong, this nation has sufficient numbers of citizens who are willing, able, and ready, when absolutely necessary, to enforce that bright line.
- If necessary, the issue of governance can be, and will be, resolved by a lesson in Triggernometry 101, just as it was at Concord Bridge. Minutemen [merchants, sod busters, inn keepers] did the unthinkable: in unison, they drew a bead on Redcoats, and they fired. They fired at professional soldiers who were part of one of the world's superpower's army. The King, his commanders, and his soldiers in the field, at that point, and for years, experienced unintended consequences, aka, blowback, aka, a reality check: Some souls, against great odds, will fight for Liberty and prevail.
Ms. Victor, you squealed like a stuck pig when Mr. Smith observed that since you are a female you are equipped to be a prostitute. Nevertheless, he went on to say that even though you might function as a prostitute, until there is credible evidence that you are a prostitute, you should be treated as a lady. You, however, failed to heed the point he made: people should be judged by what they do, not by what they might do. Inexplicably, you still judge Mr. Smith by your illegitimate, irresponsible, Constitutionally infirmed might test. You also later squealed louder in your reply brief where you declared that you perceive Mr. Smith to be a threat to you and to the judiciary because he said, under oath, that he is serious about honoring his oath to support the U.S. Constitution. In doing so, you clearly took quotes out of context from a lengthy declaration. What you did is disingenuous and egregious. Have you no boundaries?
Are you aware of any qualification or limitation in one's oath to uphold, support, and defend the U.S. Constitution against all enemies, foreign and domestic? Does that oath preclude violence? Or does it permit, or even sanction, violence? What if all legal remedies are exhausted and the Constitution's enemies will prevail absent violence?
I suggest you--and civil authority--heed a quotation attributed to JFK that went like this: He who makes peaceful change impossible makes violent change inevitable.
The Ninth Circuit, the California Supreme Court, the California Legislature, the U.S. Congress, etc., can, with the stroke of a pen, slam shut the doors to the courthouses and to the legislatures, for those who claim that the Second Amendment guarantees an individual right to arms that shall not be infringed. Lawmakers and law enforcers may mock that claim and get away with it without being held accountable--for awhile. I submit, however, that slamming the court house door shut on the ground that no individual has "standing" to claim an infringement against an alleged, non-existent right because the Second does not guarantee an individual right, is dangerous--increasingly extremely dangerous. When citizens who insist that the Second guarantees an individual right are convinced that filing another lawsuit is pointless, that filing another petition to redress grievances will be ignored or paid lip service at best, what do you think these citizens will do? Submit to oppression--indefinitely? Slammed shut doors have a way of being knocked down, shot up, or blown open. Architecture that housed oppressors, historically, has often been sent a thousand feet into the air.
When the Black Robes squander their credibility and no longer enjoy persuasiveness, they will come to understand the limits of their power. When that happens, it would be prudent to be on the correct side of the vindicated, original, Constitutional bright lines. This is because a well deserved comeuppance shall be delivered to those who transgressed against the Constitution and citizens' rights. Example: Tories in the colonies after the defeat of the Crown's Redcoats were subjected to serious, innovative, comeuppances.
Your squeal says much about you. When you telephoned me to complain about what Mr. Smith said in his declaration, I had empathy for you. As a fellow professional and decent human being, I did my sincere best to try to put your mind at ease. I stressed that the inclusion of the idea of you being equipped to be a prostitute was done to sensitize you to what you have done to Mr. Smith, namely, you have stigmatized him, and demonized his pistol, merely because of what he might do with his pistol. Unfortunately, you picked up on only part of the concept, namely, you emotionally bristled at the reference to you being a prostitute, but you did not comprehend the analogous reasoning that was being used against you, reasoning [if it can be called that] which you instigated.
I again tried to be friendly and polite to you at the courthouse before the hearing on July 10th. You, however, refused to shake my hand extended to you in warmth and friendship, as if you are afraid that you might come down with a Constitutional virus.
Given this bit of history between us, if you want to squeal more about my references to U.S. history, about my Constitutional orientation, about my predictions about "Triggernometry 101," etc., go ahead and emote. I have come to expect that from you. You will not, however, be allowed to claim for yourself the First Amendment.
Your squeal is irrelevant. Your squeal is not evidence that Mr. Smith suffers from a mental disorder, is dangerous, or that his pistol should be destroyed.
To the extent that you persists in slinging irresponsible rhetoric calculated to stigmatize Mr. Smith and/or demonize his pistol, be prepared to receive verbal thunderbolts calculated to attack, logically, your position.
At one level, this case is about applying a statutory test for the destruction or return of Mr. Smith's pistol. At another level, it is about the Second Amendment. At another level, it is about Constitutionalism. At another level, it is about civil authority's abuse of its power and inability to admit a mistake. At another level, it is about all these things and one thing more: the most precious thing of all--Liberty.
Ever notice how many who are for more victim disarmament laws want to limit First Amendment rights for themselves?
Ever notice how many who are against more victim disarmament laws are willing to let others enjoy unfettered First Amendment rights? If you so desire, squeal away. Your squeal is Liberty tolerating noise.
COMPLIANCE WITH THE 5TH AMENDMENT
If none of the above is acceptable to you, you can still end this dispute in a logical, cost-time effective, honorable, face-saving, Constitutional, manner. You can do this by simply coming to terms with, and obey, two other Constitutional provisions--the 5th Amendment to the U.S. Constitution and Article I, Section 19 of California's Constitution.
Your client, and the judge, cannot Constitutionally destroy Mr. Smith's pistol in the guise of promoting the public's interest without first paying him the reasonable fair market value for that pistol.
Mr. Smith has authorized me to tender to you the following proposal. Your client may destroy Mr. Smith's confiscated personal property if, and only if, it agrees in writing to pay him what he believes is its reasonable value, and only after he is actually paid that value.
Mr. Smith places the following reasonable fair market value on his property, as itemized below.
Colt pistol magazine:
GI .45 ACP magazines
This proposal is subject to this condition: This case is resolved promptly, along these lines, and in such a way that Mr. Smith remains legally eligible to buy, and to take legal possession of, firearms he might wish to buy from a licensed FFL, over the counter, with the money he secures from your client so he can legally replace his Colt Commander.
If this proposal is not acceptable to your client and/or to you, it would then appear that in addition to wanting to hog the First Amendment and to gut the Second Amendment, your client and/or you are also willing to gut the 5th Amendment and Article I, Section 19, to promote, and to achieve, your client's illegitimate, unconstitutional agenda and goals. If that is the case, I pose these questions to you and your client:
I formally demand that you forthwith take this proposal to your client and promptly inform me in writing if your client accepts or rejects this proposal. You have an ethical duty to take this proposal to your client. Comply with your duty.
- How much more of the U.S. and the California Constitutions are you and/or your client willing to ignore, destroy, trample, or interpret away, to achieve your unconstitutional goals?
- Are there any limits that you recognize? If so, what?
- If not, why not?
- Has "it" [arbitrary rule, tyrannical rule, firearms confiscation, citizen disarmament, etc.] started in Contra Costa County, California?
- Should Contra Costa County be more accurately referred to as Contra Constitution Slime Pit?
- Where is it written in the Constitution that individual rights must yield to collective rights?
- How long should citizens who are serious about defending the U.S. Constitution against its domestic enemies tolerate unconstitutional behavior by a rogue civil authority and its agents?
- How long should citizens tolerate traitors?
- Who needs to go to Afghanistan to find Taliban when Taliban exists in the Contra Constitution Slime Pit?
Per my July 29, 2002 letter to the Honorable David Flinn, Judge, regarding my request that he recuse himself, a copy of which was sent to you, Judge Flinn will either recuse himself or he will not. If he does recuse himself and if you will not withdraw your client's petition to destroy Mr. Smith's pistol and/or if your client refuses to pay Mr. Smith reasonable fair market value for his property, as specified above, this case will have to be continued. This is because I will timely file and serve a proper objection to Judge Flinn for cause, and because Dr. Falls, one of Mr. Smith's expert witnesses, can testify only on a Monday or a Friday and August 7, the present scheduled hearing date, is a Wednesday. Consequently, please think about this and timely contact me to discuss a settlement to resolve this case and/or to discuss a mutually agreeable date to resume the hearing in this case.
I have also asked the court reporter to prepare a transcript for all of the prior hearings. Currently, I am missing the transcripts for three other hearings that took place before I became involved. I want the case continued long enough for me to secure and review those missing transcripts.
Your anticipated cooperation in this regard is appreciated.
EXPERT WITNESS STIPULATION
Are you willing to stipulate to the following: Alexander Scott, Phil Graf, and Gary Cockriell have the expertise that they claim to have in their declarations attached to Mr. Smith's opposition brief, that they are qualified to state their expert opinions as stated in their declarations, that if they were called to testify, they would testify as to their credentials, opinions, and the basis for their opinions, consistent with their sworn declarations in this case, that their declarations may be read by the court and be admitted into evidence without any objection and without the need for Mr. Smith to call any of these experts to give live testimony, and that you waive your right to cross-examination regarding these witnesses?
- If you agree to this, we can save substantial time and conserve the court's resources.
- If you do not agree to this, this testimony will come in anyway, live, or, in the alternative, the judge who keeps it out will give me a meritorious appellate issue.
- I am receptive to your thoughts on how to deal with these experts in a cost-time effective manner.
Ms. Victor, within limits, you have the power to write the conclusion in this case. So,
what will it be? Will you come down on the right side of the Constitution or on the wrong side of your ego? It is too difficult for you and/or your client to admit that civil authority has made a mistake in this case? That it should simply return Mr. Smith's pistol to him, forthwith, without any prior restraint?
Do not emote. Do not let your emotional squeal distract you from the issues--which are real, big, and serious. No one is trying to flim flam you nor blow sweet nothings in your ear.
You, your office, and your client are screwing around with the Constitution and Mr. Smith's rights. It is simply imperative that you step up to the Constitutional bright lines, function as a professional, honor your oath as an licensed professional, bite the proverbial bullet, and tell your client to knock it off. The gig is over. Return Mr. Smith's property to him, forthwith.
If you refuse to do that, please answer this question: When you buy pencils, do you buy them without erasers?
* * *
My purpose has been to attack your position, not you. If my tone is harsh, understand that I prefer to live under the original Constitutional Rule of Law, I have a duty to advocate for my client--zealously, and you gave me openings.
You can be a hero, a class act, a professional of the highest order, and a Constitutionalist if you would grasp the figurative hand I offer you in professional friendship to save the Constitution while it can be saved. This is not histrionics. The alternative is to continue our free fall toward tyranny, which will beget violence to restore Liberty. This, too, is not histrionics.
I retract nothing. Simultaneously, I assure you that there are no irremediable barriers on my end to keep me from working with you professionally to resolve this dispute in a cost-time effective, professional manner.
Please consider objectively what I have communicated.
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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