Necessity Defense: Homeless Man Wins Appeal [repost Sonny

Tom Boland (
Tue, 15 Jun 1999 19:22:38 -0700 (PDT)

From: "H. C. Covington @ ICAN! America" <>
To: "HPN Network" <>
Subject: OMMcom - Homeless Man Wins Appeal
Date: Wed, 24 Mar 1999 02:31:21 -0600

      O'Melveny & Myers LLP
      O'Melveny Helps Homeless Man Win Court Victory

      A three-judge state appellate panel in Santa Ana, Calif., has ruled that
James Eichorn, a homeless man convicted of violating a city ordinance against
sleeping in a public place, should have been permitted to present a defense of
necessity to a jury. O'Melveny & Myers' Newport Beach office has been
representing Eichorn since his arrest six years ago.

      James Eichorn, a homeless Vietnam veteran, was arrested on January 25,
1993, for sleeping in a sleeping bag in the parking lot of the City of
Santa Ana
Civic Center, in violation of the city's anticamping statute. All the homeless
shelters were full that night, and he had no family in the immediate area.

      At his trial in Orange County Superior Court in 1996, however,
Eichorn was
prevented from raising the defense of necessity. Eichorn wanted, but was
to offer evidence that he had been unable to find work as a manual laborer that
paid enough to allow him to find an alternative place to sleep. The court found
that Eichorn did not show that he had acted in the best way possible to avoid a
"significant evil." Judge James Brooks even suggested to O'Melveny partner
(then-associate) Brett Williamson, "Couldn't your client have found a nice
little warm covered stairwell on private property, to sleep...?" Eichorn was
ordered to perform 40 hours of community service.

      After losing a series of appeals, Eichorn filed a writ asserting that he
should have been allowed to present his necessity defense to a jury.

      On December 30, 1998, the Fourth District Court of Appeal in Santa Ana
found that James Eichorn must be allowed to present evidence that the area
shelters were filled and that he was homeless against his will on the night of
January 25, 1993. With Justices David G. Sills and Edward J. Wallin concurring,
Justice Crosby wrote, "Sleep is a psychological need, not an option for
In re Eichorn, 99 Daily Journal D.A.R. 659.

      In sending the case back for trial, the appeal panel explained that
necessity "does not negate any element of the crime, but represents a public
policy decision not to punish such an individual despite proof of the crime."

      Associate Robert G. Loewy addressed the potential impact of the ruling:
"This case may raise the issue as to whether these statutes are actually
enforceable. I think this ruling will discourage other cities from passing
[anticamping] ordinances and for those who do have them, will discourage them
from enforcing them as rigorously."

      Loewy added, "It's important to know that there will always be law firms
and organizations that will act as counterweights to the desire to punish a
politically unpopular group."

      Partner Phillip R. Kaplan and associate Todd A. Green have been working
with Williamson and Loewy on this case.

      "Homeless Man Will Be Allowed To Show Necessity of Sleeping"
      by Anna Marie Stolley
      Los Angeles Daily Journal
      January 22, 1999, pp. 1,5

      In re Eichorn will be among the six cases profiled in an upcoming
O'MELVENY ONLINE feature on the firm's pro bono work.

      These materials have been prepared by O'Melveny & Myers LLP for
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      Copyright  1999 O'Melveny & Myers LLP. All rights reserved.

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