Federal judge orders nude photos of grandkids returned to grandmother

By The Associated Press

06.20.01

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NEWARK, N.J. — Nude pictures an Essex County grandmother took of her granddaughters cannot be considered child pornography and must be returned to the woman, a federal judge has ruled.

U.S. District Judge Dickinson R. Debevoise also found, however, that Essex prosecutors and Montclair police acted in good faith in prosecuting Marian Rubin and cannot be sued for monetary damages.

Rubin's lawyer, Jeffrey E. Fogel, said his client was satisfied with the ruling because she mainly wanted the pictures back.

"The state has no right to engage in censorship when there's no evidence that a crime has been committed," Fogel said yesterday.

An appeal was unlikely, said county lawyer Robert C. Scrivo.

Authorities maintained the photographs were contraband, arguing that the images "would provide considerable interest and excitement for a pedophile observer" in violation of state law.

Debevoise disagreed. "The photographs have been reviewed and it cannot be concluded that they were taken by plaintiff for the purpose of sexual stimulation or gratification," he wrote.

Rubin, 66, of Montclair was arrested on three child endangerment charges in February 2000 after lab workers at a photography store notified police when she arrived to pick up 40 pictures of the girls, ages 8 and 3.

Montclair Police Chief Thomas Russo said at the time that some pictures showed private parts of the girls.

Rubin completed a pretrial intervention program, and the charges were dismissed in March without any admission or adjudication of guilt, Fogel said.

Rubin sued Essex and Montclair authorities in April, charging that they violated her constitutional rights to free expression, equal protection and freedom from illegal seizure.

Some of the items seized from her had been returned, including a computer, CD-ROMs, journals, negatives, contact sheets and photographs, but at least 11 envelopes of film and photographs were still being held, Fogel said.

Rubin, a school social worker in the Belleville district, has been an avid amateur photographer for about five decades, her lawyer said. Her work has appeared in magazines and books.

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