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State v. Levinson

Decided: May 19, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
v.
DAVID J. LEVINSON, DEFENDANT-APPELLANT



King, Gaulkin and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

The issue is the validity of a regulation banning photography on the New Jersey Turnpike. Defendant's municipal court conviction for taking photographs on the New Jersey Turnpike was upheld in the Law Division. Defendant appeals, and we now reverse.

Defendant, a Virginia resident, was traveling on the New Jersey Turnpike with his wife on August 8, 1986 when he witnessed a collision between a state police car and two other vehicles. According to defendant and his witnesses at the municipal court trial, the police vehicle was being operated in reverse at an excessive speed on the left shoulder of the southbound lanes when it spun out of control and veered into the southbound lanes causing the collision.

After offering assistance to the persons involved in the collision, defendant, an associate professor of photography at a Virginia community college, began taking photographs of the scene. Defendant testified that he took the photographs to make a record in the event of a police coverup of the cause of the collision.*fn1

Trooper Fleming and his superior, Sergeant Miele, observed defendant using his camera and ordered him to stop taking pictures. Defendant testified that he took five pictures, the last one being of Fleming and Miele pointing at him, but that he took no more photos after he was told to stop. Fleming testified that defendant continued to photograph after he was told to stop. Fleming approached defendant, informed him that

it was against Turnpike regulations to take photos, that he was under arrest and that defendant would have to give the film to him. Defendant, expressing disbelief that he was being arrested for taking pictures, removed the film from the camera. However, before giving it to Fleming, defendant demanded a receipt and apparently refused to relinquish the film without a receipt. During a struggle to place handcuffs on defendant, the film came into the possession of Ronald Speicher, one of the persons involved in the collision. Speicher retained the film, had it processed and presented the photos to the municipal court at defendant's trial.

Defendant was charged with taking photos on the Turnpike in violation of N.J.A.C. 19:9-1.6(k) and walking on the Turnpike in violation of N.J.A.C. 19:9-1.9(a)(1). Defendant was also charged with obstructing an officer and resisting arrest in violation of N.J.S.A. 2C:29-1 and 2. He was found not guilty in the municipal court of all charges except the photographing charge.

The regulation in issue states:

No person shall be permitted to take photographs or motion pictures on the New Jersey Turnpike except as authorized by the authority.

N.J.A.C. 19:9-1.1 defines the New Jersey Turnpike as including "entrance plazas . . . toll houses, service areas, service stations, service facilities . . . and administration, storage and other buildings. . . ."

On this appeal, defendant contends that the regulation is arbitrary, that it exceeds the authority granted by the legislature and that it is vague, overbroad and unconstitutional. The latter argument is based on the premise that the act of photographing is a constitutionally protected activity.

The New Jersey Turnpike Authority (Authority) was created by the legislature. N.J.S.A. 27:23-1 to 40. The Authority's powers consist of expressly granted powers and incidental powers reasonably necessary to effectuate the ...


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