Anti-camping law conviction reversed: necessity defense accepted

Tom Boland (
Mon, 1 Mar 1999 18:00:12 -0800 (PST)

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FWD  Los Angeles Times - Monday, March 1, 1999


     Courts: Appeals panel throws out conviction of man
     cited under Santa Ana's anti-camping law, saying
     lack of shelter can be defense. The ordinance
     still stands, but violators have new tool in court.

     By RICHARD MAROSI, Times Staff Writer
When darkness falls on downtown Santa Ana, homeless people like Robert G.
Byrum often slip into the shadows for their night's sleep--huddled between
bushes, behind alley dumpsters and below staircases.

They hide because a city ordinance prohibits people from sleeping on public
property, one of dozens of anti-camping laws nationwide aimed at cracking
down on the homeless.

"If you get tired, you get tired," said Byrum, a 48-year-old diabetic and
veteran of the downtown streets. "I'll sleep anywhere I can find to lay
down. I've slept on bus benches . . . in parking lots."

But a ruling by a state appellate court has given Byrum and other
transients a new tool to fight what has become one of the most effective
methods that cities use to push homeless people out of public places.

The court recently threw out the conviction of a Santa Ana homeless man who
was cited for sleeping in the Santa Ana Civic Center, saying he should have
been allowed to use his lack of shelter as a defense.

The ruling didn't strike down such laws. But legal experts said it offers a
stronger defense against ordinances across California that criminalize the
behavior of homeless people.

"It recognizes a principle of law that has existed for hundreds of years:
People should not be held criminally accountable for things that they have
no choice about," said Gary Blasi, a law professor at UCLA. "If the
homeless shelters are full, your choices are basically to trespass, or be
on public property, or levitate off the surface of the Earth. You have to
be someplace."

The decision, which can be cited as a precedent, is already causing concern
among some community leaders and residents, who fear weakened anti-camping
laws could mean a return to the homeless problem that plagued cities from
Santa Ana to Santa Monica in the late 1980s and early 1990s.

Santa Ana's landmark 1992 anti-camping ordinance was one of the first in
the state, and its early success prompted other cities--including Laguna
Beach, Santa Barbara and West Hollywood--to pass similar laws. Berkeley in
December became the latest city to prohibit lying down on sidewalks,
prompted by merchants' complaints about homeless people harassing shoppers.

In many cases, the laws have succeeded in pushing homeless people from
public view or restricting them to certain areas of cities.

Santa Ana's Civic Center plaza, for example, was once lined with makeshift
homeless encampments that came to symbolize the downtown area's decline.
But since the anti-camping law was adopted, the encampments have all but
disappeared from the plaza--to the delight of residents.

"It's been a huge change for the better in the environment downtown," said
Tim Rush, president of a Santa Ana neighborhood association. "Before, you
had to carry a stick to beat these people off of you."

Rush and others worry that the ruling "has the potential to dramatically
alter the progress that Santa Ana has made," he said. "While homeless
people don't make up a great deal of the criminal element, they have a huge
impact on the perception of safety and crime."

But a few blocks away at the Rescue Mission, homeless people take a
different view. Many said they are often kicked awake by police and given
tickets for sleeping in parks. One 41-year-old man at the shelter, who
asked not to be identified, said he has gotten around the law by sleeping
in a friend's car for friend's car for much of the five weeks since he lost
his job.

"It's getting to the point where it's going to be against the law to be
homeless," he said.

The 4th District Court of Appeal ruling, published last month, involves
James Warner Eichorn, an unemployed Vietnam veteran who was ticketed in
1993 for dozing in his sleeping bag on public property.

The justices overturned a ruling by an Orange County Municipal Court judge
who said Eichorn violated the anti-camping ordinance and suggested he had
options besides sleeping in the plaza.

"Couldn't your client have found a nice little warm, covered stairwell on
private property to sleep?" Judge James M. Brooks asked Eichorn's attorneys
during the trial. "Is [it] a reasonable alternative, just going to a nearby
city, walking a mile or so? . . . Stroll on a nice sunny day, find a cushy
spot in Tustin, in a city park and make his home there."

But the appellate court ruling rejected Brooks' thinking, saying Santa Ana
could not "solve" its social problems by foisting them onto nearby
communities. It ruled that the judge should have allowed Eichorn to offer
proof that every shelter bed in the city that night was taken, and that he
was too poor to afford housing.

The justices noted that all of Santa Ana's approximately 300 emergency
shelter beds were taken the night Eichorn was cited. An expert during the
trial estimated the city's homeless population at 1,500.

Legal experts said the ruling provides homeless people with a so-called
"necessity defense" against the anti-camping ordinances, which could be
successfully challenged if communities don't provide enough alternatives.

Under the necessity defense, one would argue that sleeping in a public area
is necessary--and legal--if a community does not provide viable

James Lafferty, executive director of the National Lawyers Guild of Los
Angeles, said some cities--notably Santa Monica--have added shelter beds in
recent years in an effort to provide homeless people with realistic

Still, "there's no city in [Los Angeles] county that I know of that has
done so much for homeless that they are immune to a necessity defense," he

Legal challenges to anti-camping laws have resulted in some cities seeking
alternative approaches, as well as beefing up services for the homeless. In
Miami, for example, the city agreed to an out-of-court settlement with
homeless advocates that included sensitivity training for police. The city
also approved a 1% tax on restaurant meals to help fund services for
homeless people.

Santa Ana's ordinance makes it a crime punishable by as much as six months
in jail to use a sleeping bag or blanket or to store personal effects on
public property.  The law made national headlines and was aggressively used
by police to remove the 200 or so homeless people who camped out in the
Civic Center.

Santa Ana officials said the number of people ticketed has declined in
recent years, to about 10 per month. The district attorney's office has
said it will not appeal the ruling, and Assistant City Atty. Ben Kaufman
said it will not alter the city's policy. Transients, he said, are cited
only if police officers determine that they have not fully explored
alternatives to sleeping on public property.

Kaufman noted that on the night Eichorn was ticketed, he had not checked to
see if any shelter beds were available.

But homeless advocates question police tactics and say the case points up
the need for more affordable housing and emergency shelters.


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