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February 28th, 2012
09:46 AM ET

Judge’s dismissal of atheist's harassment claim against Muslim makes waves

By Dugald McConnell and Brian Todd, CNN

(CNN) - A protester who ridiculed the Muslim prophet Mohammed claims he was assaulted by a Muslim who was offended by the stunt, but a judge has sympathized with the alleged perpetrator, in a case that has drawn national attention.

Self-proclaimed atheist Ernie Perce marched in a Halloween parade in Mechanicsburg, Pennsylvania last October, dressed in a costume mocking Mohammed.

In a YouTube video he posted, Perce can be seen wearing a long fake beard, a white turban and green face paint, calling out provocative phrases like: "I am the prophet Mohammed! Zombie from the dead!" Perce and someone else in a zombie-themed pope costume are carrying a banner that reads "The Parading Atheists of Central Pennsylvania / Ghoulish – Godless – God-Awful."

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Then a man who is not seen on the video can be heard saying, "Take it down." Amid sounds of a scuffle, Perce can be heard saying "Hey, he's attacking me!"

Perce told CNN affiliate WHTM that the man “grabbed me, choked me from the back, and spun me around, to try to get my sign off that was wrapped around my neck."

Based on Perce's complaint, a Muslim named Talaag Elbayomy was charged with harassment. But on December 6, District Judge Mark Martin dismissed the case, saying it was one person's word against another's, and that there was no other evidence or eyewitness testimony to prove that Elbayomy had harassed or touched the alleged victim.

The judge also scolded Perce, saying he’d been needlessly provocative on an issue sensitive with Muslims.

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"You have that right, but you're way outside your bounds of First Amendment rights," Martin said, according to a recording Perce made of the court hearing. "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did."

The judge went on to point out that in many Muslim countries, ridiculing Mohammed could warrant the death penalty under Islamic law.

Critics say Martin's lecture shows he used Muslim cultural grounds to excuse a deplorable assault, and failed to defend an atheist's First Amendment rights.

"That's greatly disturbing to people that believe in free speech," said George Washington University law professor Jonathan Turley. "You can say things that are hurtful to others. We hope that you don't, but you most certainly can be protected. People like Thomas Paine spent his entire life ticking off people across the colonies."

Former terrorism prosecutor Andrew C. McCarthy, writing on the blog of National Review, accused the judge of allowing the Muslim suspect to invoke a "Sharia defense – what he claimed was his obligation to strike out against any insult against the prophet Mohammed."

And Perce said of Judge Martin, "He let a man who is Muslim, because of his preference of his culture and his way of life, walk free, from an attack."

The judge, in a phone interview with CNN, defended his ruling.

"The commonwealth didn't present enough evidence to show me that this person is guilty beyond a reasonable doubt," Martin said. "That's why I dismissed the case. Nothing as nefarious as what everyone's thinking, that I'm a Muslim or I'm biased. I'm actually a Lutheran."

Martin added that he has served three tours of duty, totaling more than two years, in Iraq and Afghanistan, where he learned more about Muslim culture.

"It just amazes me that people think that I'm biased towards Islam," he added. "I got sniped at once, I got ambushed once, I got attacked by a mob once... I've served close to 27 years in the military - and have gone overseas - exactly to preserve that right [freedom of speech.]”

But Martin also repeated his criticism of the atheist protester. "With rights come responsibilities. The more people abuse our rights, the more likely that we're going to lose them," he said. " We need to start policing up our own actions, using common sense, in how we deal with others."

Attorney R. Mark Thomas, who represented the Muslim suspect, blamed Perce for the Halloween altercation. "The so-called victim was the antagonist," he told WHTM. "I think this was a good dressing down by the judge."

A blog post by the group American Atheists disagrees. "That a Muslim immigrant can assault a United States citizen,” it says, “in defense of his religious beliefs and walk away a free man, while the victim is chastised and insulted... is a horrible abrogation."

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- CNN Belief Blog

Filed under: Atheism • Halloween • Islam • TV-The Situation Room

soundoff (2,453 Responses)
  1. Ancient Curse

    Which one broke the law? That's the only relevant question. Doesn't matter that the judge was personally offended - which one broke the law?

    February 28, 2012 at 11:26 am |
    • Thor

      EVIDENCE (perpetrator statements, the two atheists, the recording) indicates that the MUSLIM BROKE THE LAW. Of course, we are going to let the MUSLIM off the hook since we are sensitive to MUSLIM beliefs. That judge got shot at ONCE, he got ambushed ONCE, he got mobbed ONCE. Wow, well I guess that makes him an expert on .... what? Free speech is free speech and that judge needs to get off the bench. The case has merit; there is enough evidence for conviction, the judge is stupid and needs to be sanctioned.

      February 28, 2012 at 11:36 am |
    • sarah

      They can't prove that the Muslim broke the law. The video doesn't show the attack. Just a guy who set out to provoke people yelling off-camera. The witnesses were all members of the parade which made them suspect. So there really isn't any evidence. And the victim didn't miss a beat during the alleged attack either and carried on marching. So who knows what happened.

      February 28, 2012 at 5:25 pm |
  2. Dan

    Folks – This is what is wrong with organized religion. It creates far more war and acts of violence then it does anything else.
    http://www.deism.com

    February 28, 2012 at 11:25 am |
    • Dude

      Look, those people over there are worshiping The Prince of Peace the wrong way. We need to kill and torture them till they see the light and worship The Prince of Peace the way we do.

      February 28, 2012 at 11:28 am |
    • W247

      DAn – likewise, this is what happens when people start mocking eachother and forget about common decency and basic respect. You talk about organized religions being "ha-te groups", but look at the mocking and the hate those groups are receiving in turn. Who is acting like a ha-te group now?

      February 28, 2012 at 11:38 am |
    • Thor

      AMERICAN law permits confrontation contests in court, not in the streets. AMERICAN law permits FREE SPEECH in the streets. If I want to dress up as a pope with horns in AMERICA, I CAN LEGALLY do that. I CANNOT be permitted to assault someone because of the costume they wear. The judge turned a blind eye to the EVIDENCE (Perpetrator self admission, statements from the two atheists, camera recordings...) . The judge MUST recuse himself due to bias. THAT is the right thing to do. REGARDLESS of how offensive my speech seems to you, you CANNOT assault me for it.

      February 28, 2012 at 11:48 am |
    • derp this is logical

      There is a very obvious common sense way to approach this. The Atheist was clearly out of line. Don't blame others for your own actions.

      This was just an attempt to grab headlines. Quit making this into more than what it is.

      February 28, 2012 at 5:23 pm |
    • GreatIdeaGenius

      The atheist was out of line? Are you a dunce? Only one of the two parties broke the law, it wasn't the atheist. The atheist is protected. It's his right to dress the way he wants, you're a crazy, deluded fool.

      February 28, 2012 at 6:11 pm |
  3. EVN

    Pretty lame on the part of the judge, with the attacker admitting he did it and invoking a "I had to do it to respond to the afront to my religion" defense (and so much for it being a swearing contest regarding the attack happening). What more evidence did the state need to provide proof beyond a reasonable doubt that an assault happened ?

    It's also lame (maybe even more so) that earlier reports of the incident asserted the Judge was a Muslim and supposedly said that the assault victim affronted his beliefs, but what would you expect from right wing islamophobic media.

    February 28, 2012 at 11:25 am |
  4. Rob

    That's assault, brotha.

    February 28, 2012 at 11:24 am |
  5. The Wind

    It's time Atheists protest their beliefs like how African Americans (MLK's followers) did in the 60s. Don't run up to a group of Muslims protesting putting yourself in a situation where you can get hurt. That is just not smart. While Atheist did have his right to freedom of speech the judge needs to realize this is America not the Mid East. So you can die over there for talking about Muhhamd but not here.

    February 28, 2012 at 11:24 am |
    • Thor

      As a Catholic... you are correct and right.

      February 28, 2012 at 11:38 am |
    • J. Morales

      Um, this is America, I shouldn't have to worry about whom I'm protesting where. That makes no sense. Free speech is free speech, not, well you can say anything you want except in that neighborhood it's full of Blacks, Asians, Christians, Muslims, whatever.

      February 28, 2012 at 3:52 pm |
  6. indyreader

    "The judge also scolded Perce, saying he’d been needlessly provocative on an issue sensitive with Muslims."
    Needlessly provocative – wearing a costume and carrying a sign in a friggin' HALLOWEEN PARADE. If this is the judge's threshhold for needless provocation, would he impose legal limitations or punishment on Westboro Baptist protests of soldiers' or dead gay kids' or anyone else's funerals? Would he shrug off an angered mourner's assault on them? Interesting.
    If there really was not enough evidence for a conviction, that may have been fair enough. But the scolding of the costume-wearer was unnecessary.

    February 28, 2012 at 11:23 am |
    • Thor

      That is wrong. There were two atheists, including the perpetrator admitting he did it. What more evidence do you need? I bet though, if the guy wearing the muslim outfit was black and got assaulted by a white guy, the case would be on and the white guy would have been kangarooed right into the slammer already!

      February 28, 2012 at 11:27 am |
    • sarah

      So when two Westboro church members claim someone attacked them and one of them is yelling off-camera... you would find this sufficient evidence?

      February 28, 2012 at 5:30 pm |
  7. Logic

    Judge may have been right that there was not enough evidence, but he was dead wrong with the lecture about it not being within the rights of the atheist. He was not intimidating, he was satirizing. If this type of speech is not protected, we might as well go live in the middle east. If the judge told me I could be killed for doing it in the ME, I would tell him it is irrelevant, we live in the USA.

    February 28, 2012 at 11:23 am |
  8. Kelly

    "you're way outside your bounds of First Amendment rights"
    Really, judge? Because I'm pretty sure he was well within his rights. Just because he is an Atheist, does not mean he doesn't have his own "religious" rights that need protecting just as much as a Muslim, or Lutheran, or Buddhist or any other person! Dismiss the case based on lack of evidence, that's fine. But we didn't need your commentary regarding the victim provoking it and basically stating he deserved it.
    Sharia Law, coming to America. Great.

    February 28, 2012 at 11:23 am |
  9. Dude

    Depicting the Prophet Muhammad is an affront to Islam. The cartoonist who drew Muhammad in a news paper now has to live under guard or be killed.

    Mishandling a Koran is an affront to Islam. Americans accidentally included some (already defaced) Korans in a pile of books to be burned. Muslims have rioted and murdered Americans who had nothing to do with the offense.

    Holding an innocent man down and sawing his head off with a bread knife in the name of Muhammad is an affront to Islam. When a group of Muslims posted a video of themselves holding an innocent man down and sawing his head off with a bread knife in the name of Muhammad . . .

    I guess all the Muslims were busy that day and they couldn't make it to the streets to riot in protest to that affront.

    February 28, 2012 at 11:23 am |
    • Thor

      Now hear ye, hear ye! All Muslims are more privlidged and more equal than all others ESPECIALLY in Judge Martins court!

      February 28, 2012 at 11:51 am |
  10. John

    I'm agnostic, Martin's a Lutheran, Perce is an Atheist, Elbayomy is a Muslim. So what? Perce was unquestionably within his rights to dress up as a zombie Mohammad, but Martin was right to say the state did not prove Elbayomy attacked Perce-the recording failed to aim at the scuffle and catch the participants. It SOUNDS like Perce says, but we seem to have only one witness against one witness, and that's a draw. Case closed. Next time take more witnesses along.

    February 28, 2012 at 11:23 am |
    • Thor

      Bull.... there were two atheists present and a camera guy.... the judge was wrong.

      February 28, 2012 at 11:25 am |
  11. BettyWooster

    Well, I'm also an atheist and I agree with the judge – everyone knows that Muslims take even far more minor things seriously. I only hope people don't, as they often do (and especially since the American Atheists are backing the plaintiff), jump to the conclusion that all atheists are badly behaved and insensitive. Me, I even read from the Bible when I'm volunteering and encourage my friends who are religious to stick to what they say works for them. You don't have to be a jerk to be an atheist.

    February 28, 2012 at 11:22 am |
    • Thor

      Betty.... you need to read up on Quakers and such as to why they came here to America.

      February 28, 2012 at 11:24 am |
  12. HotAirAce

    The believer crowd will be largely silent on this case 'cause the assault victim was an atheist. They'll change their tune when the victim is a believer.

    February 28, 2012 at 11:20 am |
    • Joe

      Freedom of speech really took a hit on this one! That judge is so wrong! I live in Key West and there was a guy down here carrying a sign that was blatantly anti gay. He carried it around for months and no one could do anything about it because of our freedom of speech!

      February 28, 2012 at 11:25 am |
    • LinCA

      The number of comments is correlated to whether the article is on the CNN front page, and if it is, how prominently it is displayed.

      It is (for now) on the front page, albeit with just a link and no prime placement. It does have "atheist" in the title.

      I expect quite a few believers to comment (like Brian Paul does below).

      February 28, 2012 at 11:32 am |
    • HotAirAce

      Believers generally put their religious beliefs ahead of freedom of speech without realizing that freedom of speech is what makes freedom of religion possible. If freedom of speech is restricted, it will only be a matter of time before freedom of religion is restricted. It would be interesting to hear Rick Santorun's view on this case – I think his first response would be something like "religion is under attack in the USA and the ruling is a neccesary defense of religion..."

      February 28, 2012 at 11:33 am |
    • Jon Kennedy

      I think that a big question is "would the ruling have been the same had the attacker been a Christian offended by mocking Jesus or a Catholic over a mocking Pope? That is a tough one to answer, but I suspect that if that had been the case the attacker would have gone up on charges.

      I agree with the Judge that the protestor was out of line. Having the freedom of speech and communicating your opinion and feelings in a respectful way is a lot different than parading through the streets mocking someone's beliefs. I agree that America does enjoy a lot of special rights that we often take too much advantage of.

      February 28, 2012 at 11:36 am |
  13. Chris

    The theme of the posts here is that since the man is muslim he should be found responsible of assault regardless of lack of evidence? Because that does not sound like justice to me.

    February 28, 2012 at 11:19 am |
    • I'm The Best!

      There was evidence, the judge threw it out. There was video as mentioned in the above article, there was witness testimony, and I even think I read somewhere that the Muslim admitted to the attack but didn't know it was legal in this country to dress as Muhammad

      February 28, 2012 at 11:23 am |
    • Mark

      There isn't a lack of evidence in this case. The judge didn't allow the atheist's videotape to be submitted as evidence even though it proves his case. Also, the Muslim man admitted to the responding officer that he did assault the atheist, yet in court he changed his story, and the judge was well aware that his story changed. And the judge admits to being a Muslim in the court recording.

      February 28, 2012 at 11:26 am |
    • sarah

      Mark, yelling off-camera didn't "prove" his case. The atheist set out to provoke people which means his evidence and witnesses are highly suspect. You wouldn't want to be convicted of assaulting a KKK member if this was the sort of evidence they had against you. Someone could easily manipulate the evidence to look like you did something you didn't do if this is the sort of evidence that's allowed in court.

      February 28, 2012 at 5:35 pm |
  14. PumpNDump

    The guys should've been charged for assault. Judge is wrong.

    February 28, 2012 at 11:19 am |
  15. Brian Paul

    To bad the atheist and the muslim couldn't both have been thrown in the brig!

    February 28, 2012 at 11:18 am |
    • Godfrey

      What an imbecilic statement.

      February 28, 2012 at 11:33 am |
  16. Joe T.

    Regardless of the opinions of this one judge and his ruling, one judge out of thousands is not going to make "Sharia Law" come into place. So keep your wacko, anti-Obama rants to a minimum please. Thank you.

    February 28, 2012 at 11:17 am |
    • Mark from Middle River

      Yeah but, not many issue have the potential to get both Christian and Atheist on the same side. 🙂

      February 28, 2012 at 11:21 am |
    • Mike

      No it's just a start!

      February 28, 2012 at 11:58 am |
  17. droolingjohnson

    The judge is probably a member of the Taliban. Look at me i am the Prophet Muhammed back from the land of make believe with my pet donkey/concubine lol

    February 28, 2012 at 11:16 am |
  18. t3chsupport

    Good to know then, that next time Westboro Baptist Church protests some soldier's funeral, beating the crap out of them is totally fair game.

    February 28, 2012 at 11:15 am |
    • SixDegrees

      Good point. Time to load up on bear mace...

      February 28, 2012 at 11:18 am |
    • Abraham

      Love it, I'm there.

      February 28, 2012 at 11:18 am |
    • Joe T.

      Doesn't sound like the man beat him. Sounds like he tried to forcibly remove his costume. There is a slight difference.

      February 28, 2012 at 11:18 am |
    • EvilDucks

      Well then, we'll just have to "forcible remove" whatever signs/posters/flags/costumes the Westboro's bring to their next protest. Precedent has been set.

      February 28, 2012 at 11:20 am |
    • Joe T.

      Hey, I hate the WBC as much as any person but... unless they physically assault somebody, you can't do anything. Who are you to determine where you draw the line at free speech?

      February 28, 2012 at 11:27 am |
    • Darwin

      Sounds like a plan.

      February 28, 2012 at 11:29 am |
  19. Jennifer

    Did the protestor touch him? Was he asked not to? Did he continue? Were there others in the parade who saw that? That's assault.

    February 28, 2012 at 11:14 am |
    • Glenn

      According to the article there was no eye witness testimony or evidence other than the accusers word. No one else came forward to say the alleged assault occurred. Case dismissed, it's about "Beyond a reasonable doubt" Not his word of what happened.

      February 28, 2012 at 11:30 am |
    • Thor

      Read the case: the Muslim admitted to it, the other atheist saw it, and the sound was recorded. That's a lot more evidence than what you get at a barfight.... believe me. The judge is wrong.

      February 28, 2012 at 11:42 am |
    • Mike

      The judge is afraid for his safety. Bottom line = that is what the Muslim religion counts on grow till you get a majority and then make the others bend to your way of acting – Or kill them (Stoning, beheading, cutting off their hands etc.)

      February 28, 2012 at 12:00 pm |
    • Nudge

      *** Glenn

      According to the article there was no eye witness testimony or evidence other than the accusers word
      -------------------------------------------------

      Walking in a parade, and there is NO eyewitnesses ?
      WOW.

      February 28, 2012 at 1:24 pm |
    • sarah

      When the "victim" and witnesses were actually hoping to provoke and upset people, the off-camera shouting and eye-witness evidence becomes highly suspect. Because if such evidence is allowed, then anyone can contrive to have you convicted of assault. It's no good. Who knows what happened.

      February 28, 2012 at 5:39 pm |
  20. montyross

    Another fearful individual concerned about provoking violence from the muslims. Is that all it takes to have one's way. "What if..."

    February 28, 2012 at 11:13 am |
    • Mike

      How right you are. Bottom line is that the Muslim religion is intimidation by a way of state sponsored action, under the cloak of religion.

      February 28, 2012 at 12:03 pm |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.