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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."

Watch The Situation Room with Wolf Blitzer weekdays at 4pm to 6pm ET and Saturdays at 6pm ET. For the latest from The Situation Room click here.

- CNN Belief Blog

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

soundoff (2,453 Responses)
  1. Bernardo

    If the judge truly dismissed the case because of lack of evidence, then there isn't a problem. But if the evidence was there, then the assault should have been prosecuted. It doesn't matter what the atheist was saying. I'm a Christian (specifically, a Mennonite), but I would not and should not have the right to hurt somebody because they offend me. Yes, the atheist was probably being a jerk, but the doesn't mean you can beat him up.

    February 28, 2012 at 4:03 pm |
    • reason

      There were witnesses as seen in the video, it was a parade! The attacker admitted assaulting him, to a police officer! Martin is biased towards religion and he should be ashamed of this abortion of justice. The judge, actually called the VICTIM a dufus. Martin is a disgrace.

      February 28, 2012 at 4:05 pm |
    • sarah

      A group of people set out to provoke someone and then act as witnesses? I don't know. I'd want more evidence too. And it was a dufus move. lol. I don't think the judge was telling the kid that he agreed/disagreed, just that what he was doing was juvenile and risky. Provoking a fight is never smart.

      February 28, 2012 at 4:17 pm |
  2. wilypagan

    You should listen to the tape of the proceeding. Judge Martin could not even correctly state the burden of proof. What law school did he go to? University of Bahgdad?

    February 28, 2012 at 4:03 pm |
  3. joe

    I am a Christian and I would not ever do such a foolish thing. Even if they insult my religion I am not their judge. We all will face our maker one day.

    February 28, 2012 at 4:03 pm |
  4. GodIsNotGreat

    So the US is under Sharia law now?

    February 28, 2012 at 4:02 pm |
    • reason

      Under this courtroom, until he is disbarred.

      February 28, 2012 at 4:04 pm |
  5. Thinking7

    What this judge did was wrong. Was he scared? Did a Muslim threaten to kill him if he sided with the athiest? Kind of makes you wonder. These Muslims scare a lot of people.

    February 28, 2012 at 4:02 pm |
    • wilypagan

      Scared? No. Arrogant supremicist? Yes. Listen to the tape of the proceedings. Judge Martin states that he is a Muslim.

      February 28, 2012 at 4:05 pm |
  6. Turp Griswald

    Both people showed a great deal of intolerance. They're equally guilty of poor human relations. Deport them to Newt's Moonbase.

    February 28, 2012 at 4:02 pm |
    • sarah

      I like that.

      February 28, 2012 at 4:09 pm |
  7. Mo Ham

    If this atheist was dressed up as Jesus and painted his face green and a Christian felt offended by this and clobbered him, would the Judge make the same ruling? Probably not!

    February 28, 2012 at 4:02 pm |
    • sarah

      Would he? He said it was based on lack of evidence. If a group of people were deliberately provoking you and then later claimed you assaulted them, I'd hope the judge asks for concrete evidence then too.

      February 28, 2012 at 4:12 pm |
  8. Rickey

    Since when in your's or anyone's life have things been black and white. I guess when your 8 years old and think in solely concrete terms it is. But in adulthood, we have an organ called a brain that can think in other terms. We can see that life is not black and white. Think of a parent whose family is starving. He has no means of supporting his family. So he steals food for his family. Do you throw him in jail or condemn his actions? He broke the law, but his family survives. He is wrong to steal, but is a hero for rescuing his daughter. Life is gray, make judgments if you have never done anything unlawful. I'll bet everyone of you come to a full stop at all stop signs and always obey the speed limits. Please!

    February 28, 2012 at 4:01 pm |
    • boarddog

      Oh shut it Mr. holier than thou

      February 28, 2012 at 4:06 pm |
  9. boarddog

    Wait a minute. This happened in America right? This kangaroo judge needs to go. He excluded the evidence to prove there was an attack perpetrated, threw the case out and then "dressed down" the victim of the attack? Is it just me?

    February 28, 2012 at 4:00 pm |
  10. Dakota2000

    3 idiots walk into to a court room....

    February 28, 2012 at 4:00 pm |
  11. massms

    The judge may have had the right to dismiss the case (having a right and doing the right thing are not the same) but he did not have a right to dress the man down because of his choice of a Halloween costume. Why didn't he lecture the Muslim, too? If the judge knows so much about Muslims and their so-called culture (the word culture being a misnomer), he also knows they believe lying to "infidels" like him is encouraged by their cult.

    February 28, 2012 at 4:00 pm |
    • wilypagan

      Yes, this would have been a perfect opportunity to instruct the Muslim perpetrator regarding his rights and duties as an American resident, like respecting the rights of others to express themselves without physical assault. Who know what the emboldened follower of the pedophile Mohammed will do next?

      February 28, 2012 at 4:07 pm |
  12. Thinking7

    As a Christian, I would be offended if the athiest was making fun of my religion. However, I wouldn't jump on him and try to strangle him. I'd give him a dirty look and be on my way. Civility is what this nation needs. Not hostility.

    February 28, 2012 at 3:59 pm |
    • boarddog

      Amen!

      February 28, 2012 at 4:02 pm |
    • Dakota2000

      Well its a matter of degree. There was a work of "art" that showed a cross in a jar of urine. Would that make you angry? The protester was trying to be provocative and he got what he expected.

      I think the attacker needs to learn manners, but I can understand him being upset.

      February 28, 2012 at 4:02 pm |
    • Thinking7

      Dakota2000 – Yes, it would irritate me. I still would not be trying to hurt the man.

      February 28, 2012 at 4:03 pm |
    • QS

      "Perce and someone else in a zombie-themed pope costume are carrying a banner..."

      In a way, they were making fun of your religion as well.

      February 28, 2012 at 4:09 pm |
    • Edwin

      Dakota2000
      The point you are missing is,. The atheist has the right to free speech to what ever degree he is willing to go and the muslim has the right to get mad and to protest the atheist's view. However, the court is to stay neutral in the matter and simply follow the law. A person was assaulted and the person who assaulted him should be held accountable. No one should have the right to attack someone just because they don't like what they are saying.

      February 28, 2012 at 4:15 pm |
    • Dakota2000

      Edwin

      – I generally agree.... if we are given enough time to reflect on our actions. But people get angry very quickly, and a significant number of people cannot control that anger... wether they are christian, jew or Muslim. Making fun of their prophet is almost like physically shoving someone and not expecting to be shoved back.

      What I do expect is that if this Muslim fellow thought for a few minutes before acting he would have stopped himself.
      It is disappointing that he was not apologetic in the court room.

      We would all live in a better world if they could have embraced each other an apologized.

      But, I guess neither of them read the sermon on the mount:

      "Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. " (yes, I am a bible reading atheist!).

      February 28, 2012 at 4:25 pm |
    • Edwin

      Dakota2000
      Enough time to reflect on anything doesn't matter. Assault is assault and the court is to stay neutral. People having time to reflect or not makes no difference what so ever.

      February 28, 2012 at 9:06 pm |
  13. cschreiber

    just blame the godless athiest victim and be done with it

    February 28, 2012 at 3:59 pm |
  14. Ezra

    Atheists have no rights in the USA. It is now a theocracy , like Iran.

    February 28, 2012 at 3:58 pm |
  15. Edwin

    I never thought I would agree with an atheist, but what happened here was wrong. The judge says there wasn't any evidence. From what I've read on the internet, he threw out the video and dismissed the eye witness. What about the arresting officer. Was his witness no good also? He was there. What more is needed. This is a whole breach of justice. The direction this country is going is just making me sick.

    February 28, 2012 at 3:58 pm |
    • Thinking7

      Definitely.

      February 28, 2012 at 4:00 pm |
    • reason

      Yes he tossed out the police officer's testimony as well. He literally threw out all the concrete evidence so he could say it was nothing but he said she said.

      February 28, 2012 at 4:01 pm |
  16. Ancient Brit

    This is akin to shouting "fire" in a crowded auditorium – that is, your right to freedom of speech has certain sensible bounds. Deliberately provocative speech is not free speech, and both parties are at fault – Ernie Pierce for shaming atheists (of whom I am one) by unnecessarily being an idiot and not voicing legitimate criticism but rather childish villification, and Talaag Elbayomy for allegedly reacting physically instead of recording the offense and then filing a formal complaint through the courts (which sadly seems to be the sole recourse available to Americans since reasoned discourse seems no longer possible in the culture).

    February 28, 2012 at 3:56 pm |
    • reason

      Speech that everybody agrees with does not need constitutional protection.

      Provocative speech is exactly why we have the first amendment.

      February 28, 2012 at 3:59 pm |
    • QS

      I disagree. There was another person there dressed as a zombie pope, right? So it wasn't just one person "childishly vilifying" another person's god, they were making the same statement about religion in general.....if the situation was precisely the same, but let's say a Catholic had assaulted the guy dressed up as the zombie pope, would the outcome have been different in court?

      February 28, 2012 at 4:02 pm |
    • Edwin

      Brit, We have freedom of speech here. This atheist was in his own way practicing his religion. Though I disagree he has every right to do so. Just as I have every right to practice my religion. What he did is no different from a church doing a navivity reenactment. There was no one attacking the Zombie Pope. Stop acting like you're better than us.

      February 28, 2012 at 4:06 pm |
    • wilypagan

      Bullpucky! Shouting fire in a crowded theatre is an act which in and of itself endangers lives by making people rush for the exits. The fact that there was only one person in the crowd who reacted in an unlawful matter throws that argument out the window. We need to be careful however, if our rights have been so watered down with this level of Muslims in our country, think what will happen when they get to 10% or more of the population.

      February 28, 2012 at 4:09 pm |
  17. reason

    Nobody has the right to not be offended and nobody has the right to assault someone they disagree with.

    February 28, 2012 at 3:56 pm |
    • BethTX

      Thank you and well said. It reminds me of all the oversensitive !diots on CNN comment boards who rush to hit their "report abuse" button when they read something they don't like.

      February 28, 2012 at 4:07 pm |
  18. frank

    A few years back there was a "self proclaimed Christian" group the pocketed solders funerals and grivers were jailed for assaulting the. Yet this guy gets away with assaulting some one making fun of a presumed prophet to some. This is really messed up!

    February 28, 2012 at 3:56 pm |
    • reason

      The judge should be disbarred!

      February 28, 2012 at 3:57 pm |
  19. yikes

    I'm not an atheist but I DISAGREE with the judge 100 %. If this man wants to look like an idiot it is his choice. The skinheads still support Hitler, the KKK still hate the blacks, and obviously this man does not care for Muslims. But guess what- they are all allowed to express their opinion. That judge should have punished the Muslim man for assaulting the atheist because one cannot physically assault someone because they don't like what is being said about one's religion. Fire the judge.

    February 28, 2012 at 3:56 pm |
    • JenniferUCD

      Agreed. The judge claimed he did not have enough evidence to prove that the man did it, but the defendant himself said he did it because the victim offended him. We need to be consistent with how we deal with assault cases and cannot let someone off just becasue the judge is sympathetic to their particular religion.

      February 28, 2012 at 4:12 pm |
    • Dakota2000

      You know, making fun of a culture is the American hazing processes. Ben Franklin disliked the "swarthy germans"
      The jews and irish, italians, catholics... were once hated and made fun off... After a while the hazing gets old and people find the next group to harass. I am not saying its a good thing, but it just seems to be part of the process of assimilation in our country. I look at the harassment as step 1 of musilm assimilation into american culture. In a weird american way, this is a "thumbs up" to their religion...

      February 28, 2012 at 4:18 pm |
  20. RustyShackleford

    Interesting that the man dressed as 'Zombie Pope' was not attacked. Wasn't he doing the same thing, trying to antagonize Christians / Catholics? But it's only bad when Muslims are poked fun at, every other religion is fair game?

    And as far as the evidence goes, the testimony of the arresting officer and the video of the event were not allowed by the judge. Also, in the audio recording-which has been linked several times in these comments- the judge says that he is Muslim, and in this phone interview he says he's Lutheran? Why lie about your religion? This Judge needs to be removed from the bench!

    February 28, 2012 at 3:55 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.