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State v. Lashinsky

Decided: July 23, 1979.


On certification to Middlesex County Court.

For affirmance -- Chief Justice Hughes and Justices Schreiber and Handler and Judge Halpern. For reversal -- Justices Mountain, Pashman and Clifford. The opinion of the court was delivered by Handler, J. Hughes, C.J., concurring. Pashman, J., dissenting. Clifford, J., dissenting. Justice Mountain joins in this dissenting opinion.


[81 NJ Page 5] The question before the Court in this case is whether the defendant, Harvey I. Lashinsky, a press photographer employed by a newspaper, The Star-Ledger, was properly convicted as a disorderly person for his refusal to heed a police officer's order

to move back from the immediate vicinity of a gory, fatal automobile accident on the Garden State Parkway. Lashinsky was charged with violating N.J.S.A. 2A:170-29(2)(b) which provides that: "Any person who in any place, public or private * * * obstructs, molests or interferes with any person lawfully therein * * * is a disorderly person." On May 16, 1978, after a three day trial before the Sayreville Municipal Court, defendant was adjudged guilty and fined $25 plus court costs. On June 9, 1978 the Middlesex County Court conducted a trial de novo on the record and sustained the conviction but reduced defendant's fine to $10 and court costs to $5. We granted direct certification on January 9, 1979, 79 N.J. 475, and now affirm.

The events giving rise to defendant's arrest began at about 1:45 p.m. on March 25, 1977 when Lashinsky, driving south along the Parkway, noticed a broken guardrail and a car overturned on a sloped embankment on the shoulder of the road. Believing that the accident was a "spot news event" worthy of coverage, defendant parked his car about 150 feet away, placed his press pass identification in the windshield, proceeded toward the wreckage and took several pictures.

About fifteen or twenty minutes later Trooper Eric Herkloz of the New Jersey State Police arrived. By this time a crowd of about forty or fifty people had gathered in the vicinity of the accident. A member of the Herbertsville First Aid Squad who had stopped to provide help advised the officer that there were casualties. A girl, seriously injured, covered with blood and going into shock, was pinned inside the automobile against the corpse of her mother, who had been decapitated. Herkloz went back to his patrol car and radioed for an ambulance and police "back-up" units. Upon returning to the area of the wreck, the officer noticed that gas, oil and transmission fluid were leaking from the vehicle and that the car's battery, although still attached to the electrical system, had fallen from the car and cracked open. In addition a great deal of personal property was

strewn about the crash site.*fn1 Fearing that a fire might break out which would jeopardize the safety of the injured victim, those attending her and the numerous onlookers, and cognizant of standard police procedures which require that the scene of a traffic fatality be preserved for investigation, Herkloz decided to clear the area of spectators. Everyone, except two individuals involved in first aid, was asked to withdraw from the area until the police back-up assistance arrived. About fifteen or twenty spectators, including the defendant, failed to comply with the request immediately. Herkloz turned his attention alternately between Lashinsky, who was positioned down the embankment where the wreck had come to rest, and members of the crowd, who had begun to proceed up the slope. Lashinsky was asked, individually, to "please leave the scene". The photographer stepped back five feet but withdrew no farther. Lashinsky showed Herkloz a press card issued by the State Police. The trooper told Lashinsky "I don't care at this point" and again asked him to "please leave the scene". Defendant claimed at trial that Herkloz then arrested him immediately, before he had a chance to respond. However, the trooper and the two first aid assistants testified that prior to the arrest, Lashinsky engaged the trooper in a heated argument, lasting about three to four minutes, during which Lashinsky hurled expletives at Herkloz and told the officer to go away and do his own job and let Lashinsky do his. After it became quite apparent that the photographer had no intention of removing himself from the scene, he was arrested.

Although it is undisputed that Lashinsky never actually touched or threatened the officer, there is ample evidence from which to conclude that the defendant impeded the trooper in the performance of his duties. The County Court Judge found that the size of the crowd at the accident scene made it very difficult

for a lone policeman to exercise control. Herkloz testified that, during the argument, other spectators, who had begun leaving the scene, "stopped * * * and turned around and paid attention to the defendant who was screaming at [the trooper] * * *". The officer added that, had it not been for the altercation with Lashinsky, he would have spent that time giving first aid to the victim still inside the vehicle and assisting the person already providing first aid, who herself testified that she had wanted to obtain help from the officer but had been unable to secure his attention because he had his back to her and was busy arguing with Lashinsky.

To complete the factual picture, it should be noted that some time after Lashinsky was arrested, two other photographers, one from the New Jersey Highway Authority (which operates the Garden State Parkway) and one from the State Police, arrived and, since they had official duties, were permitted by Herkloz to take pictures. The trooper testified that he had allowed one of these men to stay, because "[h]e [was] supposed to be out there to take pictures of the accident * * *. It was the man's job."

Two important related questions emerge from defendant's primary contention that his conduct was not proscribed by the disorderly persons statute, N.J.S.A. 2A:170-29(2)(b). One involves the assertion that his conduct simply was not the kind of activity which the statute intended to forbid as a disorderly persons offense. The other is that his status as a newspaperman, a press photographer, was in a sense privileged and constituted a defense to the disorderly persons charge. Defendant also contends that the statute under which he was convicted was unconstitutionally vague and overbroad. We deal with each of these issues.


Defendant argues that his conduct should not be considered to have violated the disorderly persons statute because he did not directly, physically interfere with the officer's movement and

because he did not have the specific intent to interfere with the officer.*fn2 His offered interpretation of the statute, which would exempt his actions, is overly narrow.

This statute, which forbids an individual to obstruct, molest or interfere with another person who is lawfully in any place, N.J.S.A. 2A:170-29(2)(b), does not by its express terms import the notion that the prohibited conduct must be physical in nature. Obviously, conduct involving direct contact which physically obstructs or restrains the lawful activities of another individual, see, e.g., Haywood v. Ryan, 85 N.J.L. 116, 118-119 (Sup.Ct.1913); State v. Guillotte, 10 N.J. Super. 502, 503 (Cty.Ct.1950), would constitute a ready example of the statute's application. It does not follow, however, that the outer limits of the statutory prohibition is restricted to such physical interference and nothing more. The court in State v. Furino, 85 N.J. Super. 345, 348 (App.Div.1964), holding that the statute would prohibit conduct which impedes the task of a police officer, observed:

The three verbs are definite, clear and distinct, readily understood and employed in the every-day speech of the man on the street. Refined definition is unnecessary. "Obstruct" means to object or come in the way of; to hinder from action; to impede. "Molest" means to interfere with or meddle with unwarrantably. And "interfere" is defined as to enter into or take a part in the concern of others; to intermeddle, intervene. Webster's New International Dictionary, (2d ed. 1948); and see 3 Wharton's Criminal Law (Anderson ed. 1957) ยง 1284, p. 634.

Accord, State v. Manning, 146 N.J. Super. 589, 593 (App.Div.1977); see State v. Smith, 46 N.J. 510, 520, cert. den. 385 U.S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966); State v. Taylor, 121 N.J. Super. 395, 398 (Cty.Dist.Ct.1972). A number of cases have held that interference does not require actual or total physical

frustration, State v. Smith, supra; Tp. of East Brunswick v. Malfitano, 108 N.J. Super. 244, 246-247 (App.Div.1970); State v. Taylor, 38 N.J. Super. 6, 29-30 (App.Div.1955); it may include conduct which involves unwarranted intervening or intermeddling in the activities of others, State v. Manning, supra.

A real concern expressed by those who believe the statute is limited to "physical interference with personal movement", e.g., id. 146 N.J. Super. at 598 (Antell, J., dissenting), is that, otherwise, an arresting officer could act arbitrarily to "convert the character of an event from nonpunishable to punishable by proclamation alone." Id. at 599. However, as the majority in State v. Manning, supra, perceptively noted, id. at 595, simply to say that a police officer by his command or "proclamation" may, in a given situation, define what conduct is or is not permissible, begs the ultimate question whether, as a matter of law, that conduct constituted "interference" and was properly prosecuted. This question in each case calls for an assessment of defendant's actions in light of all the surrounding circumstances -- the activity giving rise to a policeman's order, the reasonableness of that order itself and the defendant's reaction to it. An individual may not, in our view, be arrested for disorderly conduct solely because the arresting officer capriciously or in bad faith finds behavior annoying or distracting. To trigger the application of the statute, conduct must be truly obstructive.

Courts are attuned to gauge the reasonableness of a policeman's actions in citizen-police confrontations and to sort out police behavior which is lawful and proper from that which is not. E.g., Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972); Terry v. Ohio, 392 U.S. 1, 20-27, 88 S. Ct. 1868, 1879-1883, 20 L. Ed. 2d 889, 905-909 (1968); State in Interest of H.B., 75 N.J. 243, 248 (1977) (stop-and-frisk cases); State v. Washington, 57 N.J. 160, 162-163 (1970); State v. Mulvihill, 57 N.J. 151, 155-159 (1970); State v. Moriarty, 133 N.J. Super. 563, 573-575

(App.Div.1975), certif. den. 68 N.J. 172 (1975) (resisting arrest cases). Judge Goldmann observed that "* * * [t]he duty of police officers, * * *, is 'not merely to arrest offenders, but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions'". State v. Taylor, supra, 38 N.J. Super. at 30, quoting from People v. Nixon, 248 N.Y. 182, 188, 161 N.E. 464, 466 (Ct.App.1928) and People v. Galpern, 259 N.Y. 279, 181 N.E. 572 (Ct.App.1932); accord, State v. Manning, supra, 146 N.J. Super. at 596, 370 A.2d 499. The average citizen is, likewise, held to a similar standard and deemed capable of differentiating between permissible and impermissible behavior. Reasonableness is the key. Hence, where an officer's instructions are obviously reasonable, in furtherance of his duties, an individual toward whom such instructions are directed has a correlative duty to obey them. State v. Taylor, supra. If his refusal to respond results in an obstruction of the performance of the officer's proper tasks, this will constitute a violation of the disorderly persons statute.

We are not persuaded by defendant's argument that his conduct should not fall within the statute because he did not specifically intend to interfere with the officer. No such specific intent, in the sense of awareness of unlawfulness or a motive to break the law, is required in order to affix criminal responsibility for conduct which is otherwise volitional and purposeful, and in fact brings about the impermissible result. Cf. State v. Schultz, 71 N.J. 590, 601 (1976); State v. Savoie, 67 N.J. 439, 452-464 (1975); Morss v. Forbes, 24 N.J. 341, 358-359 (1957). Legitimate concerns for the public safety dictate that, in an emergency situation such as that presented here, it is the officer vested with public authority rather than a civilian bystander who must define what conduct is to be allowed. "Failure, even though conscientious, to obey directions of a police officer, not exceeding his authority, may interfere with the public order and

lead to a breach of the peace." State v. Taylor, supra, 38 N.J. Super. at 30; accord, State v. Manning, supra; cf. Cox v. Louisiana, 379 U.S. 559, 569, 85 S. Ct. 476, 483, 13 L. Ed. 2d 487, 495 (1965).

The record supports the findings beyond a reasonable doubt of both trial courts that interference occurred in this case. An average person would readily understand the nature of the emergency confronting Officer Herkloz. The gravity of the accident, in which one of the victims was still alive, but possibly succumbing, made it imperative to clear the area for additional ambulance and police assistance. The possibility that fire might break out was another obvious reason for ordering the dispersal. General law enforcement responsibilities, heightened by the presence of personal property and valuables strewn about, made the officer's concern for preserving the scene of the accident apparent. The problems of crowd control faced by Herkloz, the only police officer there, anxiously awaiting assistance, were real, substantial, obvious and exigent. Defendant's presence at the scene at that time, taking pictures in close proximity to the victims and the car wreck, could not help but to attract the crowd's attention and make the officer's job more difficult. His order to Lashinsky to withdraw was clearly reasonable. Lashinsky's dogged and willful refusal to obey that order was palpably unreasonable. Under these circumstances, we have little difficulty in concluding that defendant was a disorderly person within the meaning of N.J.S.A. 2A:170-29(2)(b).*fn3


Defendant asserts that the disorderly persons statute does not in these circumstances reach him by virtue of his status as a member of the press. We disagree.

We have declared that the right of the press to gather news is entitled to special constitutional protection. In re Farber, 78 N.J. 259, 267 (1978); Freedman v. New Jersey State Police, 135 N.J. Super. 297, 302 (Law Div.1975). See State v. Allen, 73 N.J. 132, 170 (1977) (Schreiber, J., concurring). The Supreme Court has observed that "newsgathering is not without its First Amendment protections", for "without some protection for seeking out the news, freedom of the press could be eviscerated". Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S. Ct. 2646, 2656, 2670, 33 L. Ed. 2d 626, 639, 655 (1972); also, Pell v. Procunier, 417 U.S. 817, 833, 94 S. Ct. 2800, 2809, 41 L. Ed. 2d 495, 507 (1974). Nevertheless, it has been recognized that the constitutional prerogatives of the press must yield, under appropriate circumstances, to other important and legitimate government interests. Cf. In re Farber, supra, 78 N.J. at 267-269. The liberty which the press seeks to assure our people can be meaningfully enjoyed only in a society where there is an adequate measure of order. Cf. Cox v. Louisiana, 379 U.S. 536, 554-555, 85 S. Ct. 453, 464, 13 L. Ed. 2d 471, 484 (1965); State v. Smith, supra, 46 N.J. at 517-518. Consequently, "reasonable 'time, place and manner' regulations * * *" may be imposed by the State on First Amendment freedoms. Pell v. Procunier, supra, 417 U.S. at 826, 94 S. Ct. at 2806, 41 L. Ed. 2d at 504; Cox v. New Hampshire, 312 U.S. 569, 575-576, 61 S. Ct. 762, 766, 85 L. Ed. 1049, 1053-1054 (1941). See Cox v. Louisiana, supra, 379 U.S. at 554-555, 88 S. Ct. at 464, 13 L. Ed. 2d at 484.

The limitations which may reasonably be appended to a newsman's constitutional prerogatives must take into account the unique role of the press in public life. Restrictions which fail to give proper weight to the importance of the news and those who gather it and which are not necessary to accommodate any other legitimate governmental concerns would have no justification. Cf. Branzburg v. Hayes, supra, 408 U.S. at 707-708, 92 S. Ct. at 2670, 33 L. Ed. 2d at 655. A news journalist or photographer on assignment acquires news "not * * * [only] for his own edification" but also to serve the needs of society. Houchins v. KQED, Inc., 438 U.S. 1, 17, 98 S. Ct. 2588, 2598, 57 L. Ed. 2d 553, 566 (1978) (Stewart, J., concurring). See Gannett Co., Inc. v. DePasquale, U.S. , , 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (Powell, J., concurring); Saxbe v. Washington Post Co., 417 U.S. 843, 863, 94 S. Ct. 2811, 2821, 41 L. Ed. 2d 514, 527 (1974) (Powell, J., dissenting). A majority of the voting members of the Court in Houchins v. KQED, Inc., supra, recognized the First Amendment's concern that the public be optimally informed could in some instances render unreasonable restraints upon the scope of access to members of the press even where it would not be unreasonable to exclude the general public. Id., (Stewart. J., concurring); 438 U.S. at 30-35, 98 S. Ct. at 2605-2607, 57 L. Ed. 2d at 575-577, (Stevens, J., dissenting). "In this perspective the reporter stands apart from the ordinary citizen." In re Farber, supra, 78 N.J. at 300, (Handler, J., dissenting).

In this framework, a balancing of competing values is required in order to assess the reasonableness of a criminal statute or governmental sanction as applied to a member of the press engaged in his profession. The Constitution does not serve to place the media or their representatives above the law. They are subject to law, as any citizen. The converse proposition would be intolerable. But, the status of an individual as a newsperson seeking news is a weighty factor in the equation for applying the law's strictures. In the present context, whether a

newsperson's conduct is disorderly must turn on whether, from an objective standpoint and under all of the circumstances, the policeman's order to the newsman was reasonable, taking into account the special role performed by the press. An officer should, if made aware of the identity and status of an individual as a newsperson engaged in gathering news, be mindful that such an individual has a legitimate and proper reason to be where he is and, if possible, this important interest should be accommodated.

In this case, the officer did not misjudge the situation. He was well aware that Lashinsky was a newsman, and, indeed, that he held the State Police press card identifying him and indicating that he was a responsible representative of the media. Nevertheless, after the officer had arrived at the scene and had become engrossed in dealing with the emergency, Lashinsky's obstreperous actions impeded the trooper. The officer, virtually working alone, could not, in his professional judgment, have permitted defendant to remain, even as a member of the press, and still discharge his own paramount responsibilities for the safety and welfare of those who were his immediate concern. Lashinsky was obligated, under the circumstances, to cooperate with the officer and withdraw; his failure to do ...

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