anti-camping law: CA court OKs necessity defense FWD

Tom Boland (wgcp@earthlink.net)
Sat, 6 Feb 1999 22:49:16 -0800 (PST)


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FWD  The Recorder, Friday, January 22, 1999

 Appeal Court Steps Up for Homeless
 4th District panel OKs necessity defense in "anti-camping" cases
 By Greg Mitchell

Four years ago, the California Supreme Court horrified homeless
advocates when it found Santa Ana's "anti-camping" law constitutional, at
least on its face.

In doing so, the high court erased the underlying opinion by Fourth District
Court of Appeal Justice Thomas Crosby Jr., an opinion Tenderloin
Housing Clinic director Randy Shaw calls "one of the best decisions ever
written."

But Crosby may end up getting the last word.

Ruling Wednesday in a related challenge to the same anti-camping law,
Crosby reminded readers that Justice Marvin Baxter's majority opinion in
Tobe v. City of Santa Ana, 9 Cal.4th 1069, had "refused to assume that the
ordinance would be enforced 'against persons who have no alternative to
"camping."'"

Indeed, Crosby wrote, "the Tobe court was given assurances by the People
'that a necessity defense might be available to "truly homeless" persons and
that prosecutorial discretion would be exercised.'"

Enter James Eichorn, a homeless Vietnam veteran who was cited in his
sleeping bag in front of the city's civic center in 1993. After the Tobe
decision issued, Eichorn sought to prove at trial that he had no real
alternative to sleeping on the streets, since shelters were full and he had
lost
his job and had no money to pay for a room.

But Orange County Municipal Court Judge James Brooks refused to let
Eichorn put on his necessity defense.

In vacating the resulting conviction, Crosby lectured Brooks for deciding
that Eichorn couldn't try to show that he had to break the law to avoid a
significant evil, in this case lack of sleep.

"At a minimum, reasonable minds could differ whether defendant acted to
prevent a 'significant evil.' Sleep is a physiological need, not an option for
humans," observed Crosby, who was joined by Justices David Sills and
Edward Wallin in In re Eichorn, 99 C.D.O.S. 588.

Crosby also savaged Brooks for suggesting that Eichorn could have simply
walked to another city to sleep or just camped out in someone's backyard or
the rear steps of a church.

"For guidance of the court at retrial," Crosby wrote in a footnote, "neither
trespassing on private property nor walking to a different city were
adequate alternatives. Simply put, Santa Ana may not 'solve' its social
problems by foisting them onto nearby localities."

Compare that with Justice Stanley Mosk's dissent in Tobe: "The city cannot
solve its 'homeless' problem simply by exiling large numbers of its
homeless citizens to neighboring localities."

While Wednesday's ruling is an important symbolic victory for the
homeless, it probably won't play a role in the escalating dispute between
homeless advocates in San Francisco and Mayor Willie Brown.

Brown and some of his allies on the board of supervisors want to use
existing laws against sleeping and drinking in certain public places to clear
the homeless from United Nations and Hallidie plazas.

But Shaw, the Tenderloin Housing Clinic director, said Thursday that he
doesn't think Eichorn's necessity defense will come into play.

In San Francisco, "the strategy is not to go to trial," said Shaw, but to
simply issue citations to offenders in the hope that they'll move along.

John Shanley, a spokesman for the San Francisco district attorney's office,
agreed the ruling was unlikely to affect the city. "San Francisco does not
put people on trial for the crime of being homeless," Shanley said.

END FORWARD


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