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Necessity Defense Prevails

an evolving report (keep checking back)
including excerpts from the articles:

1) "Jury Verdict Puts Camping Ban in Question"

copyright by James Carter and Hills Publications

As reported in "The Journal" newspaper, Albany, CA
Dec 24, 1999

Excerpted with permission - this format


2) "The City of Albany Put on Trial"

copyright by publisher Terry Messman

As reported in the Jan, 2000 Street Spirit newspaper, SF, CA

Excerpted in brief pending permission - this format


Commentary by iPoet - this format

Albany Journal, 12-21-99... A homeless man cited for camping on the Albany landfill in violation of a city ordinance was found not guilty December 21, after his attorney argued he had no other practical or legal alternative but to sleep there.

Street Spirit newspaper, Jan.2000... Homeless ppeople are so accustomed to being denied justice by ciy governments, the courts, and the police that an important legal victory on December 15 that acquitted a homeless defendant in a camping-ban trial stemming from the mass expulsion of the Albany landfill encampment felt like the dawn of new hope as the millennium came to a close.

Mike Smith, a recluse artist also known as Picasso Mike, was acquitted of the misdemeanor charge Dec. 16 after jurors considered what is known as the defense of necessity.

Smith, known as 'Picasso Mike' for the wildly colorful murals he painted on the blocks of stone and discarded construction debris at the Albany landfill, had been arrested three times for refusing police orders to vacate his self-built tipi, telling the police he had nowhere else to live.

Judge Roanld Greenberg presided over the jury trial held in Berkeley/Albany Superior Court. The December trial is the first in a series that all involve individuals cited at the Bulb for violating the no-camping ordinance.

The basis of the defense is that an allegedly illegal action can, under special circumstances, be committed because failing to do so would pose a "significant evil" and a greater danger to the accused than violating the law.

"My client had no reasonable, legal alternative than to sleep in the landfill," said David Ritchie, Smith's attorney. Ritchie said Smaith attempted to seek shelter at several homeless shelters, including a trailer set up on a temporary basis by the City of Albany. However, the facility and several others he attempted to enter were full.

According to Ritchie, a no-camping ordinance recently adopted by the City of Albany forced residents camping at the Bulb to seek shelter in other municipalities, "though (Albany) had people living there with their tacit approval for years."

When Albany began enforcement of its no-camping ordinance at the landfill in June, the city offered what was called "transitional resources: to a group of people officials once estimated to number between 50 and 80 individuals.

Yet, according to Ritchie, when a transitional housing unit was established for Bulb residents near the landfill, "the trailer only housed 21 people at max." Ritchie said the unit did not provide cooking facilities, had a limited supply of old military rations, and provided residents limited access to latrines during the evening.

The trial revealed a troubling pattern of broken promises, deception and inaction by Albany city officials who had initially pledged to find replacement housing for the soon-to-be-rousted landfill inhabitants. As testimony by Albany police officers, service providers, attorneys, and camp dwellers showed, Albany officials did not find alternative hsouing for any of the homeless people evicted from the landfill and, amazingly, does not provide any homeless services or shelter whatsoever anywhere in the city..

Individuals who attempted to stay at the the temporary shelter were then referred to shelters and programs out of town, primarily in Berkeley, according to the attorney.

"THe dirty little secret is that Albany has no homeless shelters or services though they had people living on the Bulb for years," Ritchie said.

There may be civil action against the City of Albany to challenge the no-camping ordinance, Ritchie suggested. "The issue comes down to this: If Albany wants to enforce this ban, then I would say they have to provide some minimum service for the homeless and not just refer them to Berkeley."

PacBell phonebook info: Mr Ritchie's office: 2576 Shattuck Ave., Berkeley, Calif; Phone: 510-644-1592.

I don't think this particular case has any implications as far as we are concerned," Albany City Attorney Robert Zweben said. "This is not going to impact enforcement of the (no-camping) ordinance, though we may make some adjustments."

"I understand that there was testimony offered showing temporary housing was offered residnets (at the Bulb), but the jury was not impressed by that," Zwebeen added. "As in all criminal prosecutions, just because Mr. Smith was successful does not mean we won't - or can't - enforce the ordinance. It's just a question of how.

Zweben said the issue of whether Albany provides services for homeless people is "irrelevant." ... The city attorney said the real issue is "how are we going to take care of public property?"

Here Mr Zweben fails to grasp the central reality that provides that the poor and homeless are also in the public trust, belonging as land does, first and foremost to God, and only by his unerring grace entrusted to the public's loving care. Everything belongs to God, Mr. Zweben, and He charges us to take care not only for His earth, but also for the creatures He has made of His earth, including man (and woman)! Any less, is only half the trick.

Asked if Albany palns to change the way it enforces the ordinance, Zweben said, "if someone puts down their sleeping bag, we'll take it away immediately (underline by iPoet), where before we went through a long process to help them in transition."

Is this the "change in adjustments" as to how the camping ban is enforced, Mr Zweben? The trailers are long gone. Ashby Dancer's little shack and the others were bulldozed in August. You've taken all the sleeping bags already. What change are you talking about? Are you threatening violence? Or do you contemplate a gentler approach?

The necessity defense was allowed in part due to a ruling by a state appellate panel in Santa Ana, Calif., last January. The three-judge panel ruled that James Eichorn, a homeless Vietnam veteran convicted of sleeping in a public place in violation of a city ordinance, should have been permitted to present the defense to a jury. His case was sent back to trial.

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