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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. Dan. M

    "Based on Perce's complaint, a Muslim named Talaag Elbayomy was charged..."

    Wrong! Sloppy reporting, CNN (as usual).

    A police office interviewed Elbayomy at the scene. Elbayomy ADMITTED he attacked Perce because he thought it was illegal to portray muhammad in America. The officer arrested Elbayomy based on THAT information. After the trial, the officer stated he was stunned by the verdict because he thought, with the statement and the video, it was a slam-dunk case.

    February 28, 2012 at 11:33 am |
    • Give Me A Break

      It should have been. The judge is 100% wrong on this one and needs to be removed. He is nothing but a disgrace.

      February 28, 2012 at 11:36 am |
  2. hippypoet

    conspiracy corner:

    this was a set up by some christian hate groups. it was designed to make the muslim people look worse in the public eye...and the timing is due to the outreach going on currently!

    February 28, 2012 at 11:33 am |
    • Mark from Middle River

      Better Conspiracy Corner...

      1st RULE: You do not talk about FIGHT CLUB.

      2nd RULE: You DO NOT talk about FIGHT CLUB.

      4th RULE: Only two guys to a fight.

      5th RULE: One fight at a time.

      8th RULE: If this is your first night at FIGHT CLUB, you HAVE to fight.

      February 28, 2012 at 11:37 am |
  3. Jorge

    This judge seems pretty dead on. If he has no solid evidence to go off of, it's just hearsay. There is not case if there is nothing to judge. And his quote of first amendment rights is amazingly correct. If we keep trying to cover every single instance under Free Speech, then we're undoubtedly going to lose more and more of those rights. I'm not going to group all athiets together because I'm sure some would not agree with what these individuals did, but this guy's deliberate disregard to a religion (though permissable in this country) and culture is wrong. You don't like like something–keep it to yourself.

    February 28, 2012 at 11:33 am |
    • just another guy

      Is that what the suspected assailant did?

      February 28, 2012 at 1:26 pm |
    • realitypolice

      Yeah except for the video and the CONFESSION the defendant gave to the police.

      February 28, 2012 at 2:43 pm |
  4. lordpet

    There is a difference between freedom and license, and the difference lies in responsibility. Under the 1st amendment, you are free to say things that are provocative to the government without fear of arrest. However, if you get in someone's face about his religion, you might get punched. So be it. Wear it like a badge of honor; otherwise, why do it at all? What, so you can go crying to the courts that someone took offense at your Halloween costume? Settle it on the street like a man, if you think you're bad. What a baby. And I'm an atheist.

    February 28, 2012 at 11:32 am |
  5. J.W

    Maybe I do not know as much about the legal system as many do. I didn't think it was up to the judge. I thought a jury was supposed to decide if there was enough evidence or not.

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

      @J.W,
      Small claims and misdimeanor offenses (ie. traffic laws) are commonly administered by judges alone, with no jury present. If you disagree with the judges ruling you can try to appeal, and eventually have it elevated to a level where a jury is involved (and past that back to a level where it is a panel of judges).

      February 28, 2012 at 11:38 am |
    • vbscript2

      A judge can dismiss a case for lack of evidence. A jury would be required for conviction.

      February 28, 2012 at 11:42 am |
  6. Danno

    This is a very interesting subject. For example: Wearing a Hitler outfit and going outside a synagogue would cause that person to be arrested. Burning an effigy of Jesus outside a church (most likely) would get that person arrested. Burning an American flag at a NASCAR race would get you killed or at least very badly hurt. These examples involve organized religion and public thought; and is also being "assaulted" by an outside person(s) in a public place.

    I would have to agree that he could have been counter charged with attempts to incite a riot by dressing that way. Which I'm surprised that the judge did not throw that at him or at least bring that up.

    While not being an atheist, I was one for years. There are better ways to make a statement, an educational, informed, and reasonable discussion. Kill them with kindness, not with insult. And for goodness sake, pick your battles better next time.

    February 28, 2012 at 11:31 am |
    • HotAirAce

      Under what law would any of your examples be illegal? I'm not saying they are good things to do, just that I don't think they are illegal.

      February 28, 2012 at 11:41 am |
    • Danno

      @HotAirAce

      True, none of them are illegal. But if the person(s) were there DELIBERATELY to cause public unrest. Then yes, it is. Inciting a riot in many states is punishable by jail-time.

      Example: In New York State, the term riot is not defined explicitly, but under § 240.08 of the N.Y. Penal Law due to the fact there was much fighting in the streets, "A person is guilty of inciting to riot when one urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm."

      February 28, 2012 at 11:45 am |
    • The Bobinator

      > "A person is guilty of inciting to riot when one urges ten or more persons to engage in tumultuous and violent conduct of a kind likely to create public alarm."

      By your incorrect reading of the law, 10 friends and I can hear a man say "TAXI". And if we go and riot because of that, he's guilty of a crime.

      Do you read your own posts to ensure they're not mildly retarded? Cause you should have in this case.

      February 28, 2012 at 11:58 am |
    • Ray From New Orleans

      Did you not even read this article?..This guy wasn't outside a mosque or any other religious facility nor was he protesting against anything..He was marching in a Halloween parade in costume, not a anti muslim protest march.Those parades are meant to be fun and satirical in nature.He wasn't there trying to incite violence against muslims or anyone else for that matter. And you obviously don't have any clue as to the laws of this country...All of the examples you gave are legal and protected by the first amendment and are not even remotely close to being relevant to this story.

      February 28, 2012 at 1:30 pm |
  7. Selim

    Like the Judge or not, he is right.

    February 28, 2012 at 11:31 am |
    • Give Me A Break

      Nope, he isn't right. How can you even say that? The Muslim assaulted the atheist. That is illegal in all 50 states. The judge deserve to be fired, period.

      February 28, 2012 at 11:33 am |
    • vbscript2

      @Give me a break:
      That wasn't proven. Conviction requires proof beyond reasonable doubt in all 50 states. The judge should certainly not have told the man that he was outside of his first amendment rights, but he was otherwise correct.

      February 28, 2012 at 11:41 am |
    • The Bobinator

      > That wasn't proven. Conviction requires proof beyond reasonable doubt in all 50 states. The judge should certainly not have told the man that he was outside of his first amendment rights, but he was otherwise correct.

      A confession is not evidence anymore? News to me.

      February 28, 2012 at 11:59 am |
  8. justme

    not an athiest, marching in a holloween parade makes him a worshipper of satan

    February 28, 2012 at 11:31 am |
    • hippypoet

      and if you truly believe that then your an idiot! enjoy.

      February 28, 2012 at 11:34 am |
  9. Mine

    I would think that this is a hate crime. If the Atheists would have attacked the Muslim it would have been.

    February 28, 2012 at 11:30 am |
    • vbscript2

      No crime was proven, which is why the case was dismissed. Read the article again.

      February 28, 2012 at 11:39 am |
  10. Dan

    How is this man a judge in the United States? Sounds like he'd be more apt to rule on Sharia.

    February 28, 2012 at 11:29 am |
    • Give Me A Break

      The judge did do just that. This is yesterdays news but it took CNN this long to spin it. This judge should be removed from the bench immediately. He is a disgrace.

      February 28, 2012 at 11:31 am |
  11. beth

    According to the story there was no eye witness testimony to back the "victim's" story. No evidence means no case. The judge is right that our freedoms come with responsibility. I think that people who go out of their way to offend or belittle others bear some blame for the problems that occur. No, I am not saying that we can go out and beat up on those who offend us, just that the person who goes looking for trouble usually finds it.

    February 28, 2012 at 11:29 am |
    • Dan. M

      Wrong.

      The muslim attacker admitted guilt to an officer a the scene. Courts have ruled such spontaneous statements at the scene ARE admissible. Also, the was video evidence that collaborated the victim's claim.

      There was plenty of evidence. The fact you put quotes around the word 'victim' shows your bias against athiests, in which case you choose not to see the evidence, just as this judge did.

      February 28, 2012 at 11:43 am |
    • Roger

      In all fairness dan, Beth may just have bias against A-$$_holes

      February 28, 2012 at 2:53 pm |
  12. Dlws

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

    In many countries, judges are killed on a regular basis. Would that make killing this judge acceptable? (Note: I am not advocating doing so, I am just drawing an analogy.)

    February 28, 2012 at 11:28 am |
  13. Daniel

    Funny, this atheist has no qualms making fun of something someone else holds dear. But I guarantee you if someone beat the crap out of the Westboro Baptist ringleader at a funeral protest, he'd be all for it. People want freedom of speech without consequence or responsibility. If that guy was mocking Jesus, I'd probably be inclined to act similarly to this Muslim.

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

      Should read AS this Muslim not TO

      February 28, 2012 at 11:29 am |
    • vbscript2

      That's not how Christians are called to act. People mock Christianity and Jesus all of the time. It's not right of them to do so, but that doesn't make attacking them ok. I think the judge was right to scold the man for stupidity, but I don't think the judge was right to say that the man was outside of his first amendment rights. At least judging from the contents of this article, it seems that he was definitely within his first amendment rights, he was just being a jerk. I'm ok with judges admonishing jerks, but telling them that they're outside their first amendment rights is taking it too far.

      February 28, 2012 at 11:34 am |
    • Mr. Black

      Which is in direct contradiction to Jesus' teachings of forgiveness.

      February 28, 2012 at 11:35 am |
    • TAK

      So Daniel, you freely admit to being a terrorist. A person that resorts to violence to defend his religious dogma meets my definition of a terrorist. Only your prophet/savior/whatever are different.

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

      Looks like the Muslims are winning the battle and their extreme acts are working and persuading our government to bow to them. Way to go America.

      February 28, 2012 at 11:44 am |
    • Daniel

      I'm not saying I'd be right in my reaction. I'd actually be very wrong. I'm just saying that when people mock what others hold dear, there are often unintended (or intended) consequences.

      February 28, 2012 at 11:49 am |
    • Hippocrates

      Just...wow...spoken like a true Christian? The funny thing is that if you had the courage of your convictions you'd realize the idiocy of physically assaulting someone would have nothing to do with defending the tenants of your faith. Instead your post reveals how weak your faith is and how insecure and intellectually weak you are.

      February 28, 2012 at 11:50 am |
  14. Paul

    "You have that right, but you're way outside your bounds of First Amendment rights,"
    This makes absolutely no sense whatsoever.

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

      Agreed.

      February 28, 2012 at 11:32 am |
    • vbscript2

      Agreed.

      February 28, 2012 at 11:34 am |
  15. Ceri

    All this world needs is to relearn the meaning of respect.

    February 28, 2012 at 11:27 am |
  16. ol cranky

    The judge's take on this case is absolutely reprehensible. While the atheist's behavior was obviously intended to offend and provoke arguments, a physical altercation initiated by the offended Muslim was criminal.

    February 28, 2012 at 11:27 am |
    • vbscript2

      If such an altercation had been proven, then, as the judge himself said, the man would have been punished. The reason for the dismissal was lack of evidence, not because the alleged action was provoked. Furthermore, the judge was right to admonish the idiot atheist to stop being a jerk and have respect for others, but he was definitely wrong to tell him that he was outside of his first amendment rights. Americans have the legal right to be jerks if they so desire, but that doesn't make it the right or respectful thing to do.

      February 28, 2012 at 11:37 am |
    • Ray From New Orleans

      vbscript2
      If such an altercation had been proven, then, as the judge himself said, the man would have been punished. The reason for the dismissal was lack of evidence, not because the alleged action was provoked. Furthermore, the judge was right to admonish the idiot atheist to stop being a jerk and have respect for others, but he was definitely wrong to tell him that he was outside of his first amendment rights. Americans have the legal right to be jerks if they so desire, but that doesn't make it the right or respectful thing to do.

      VBscript2...judges cant be wrong?..He basically thru out the evidence including an on site confession of the muslim to the arresting officer and then claimed there was none.and the Judge does not have the right to admonish the atheist nor anyone else for that matter because of the judges personal views or moral convictions.Judges are there to make sure that the law is being carried out in a fair and impartial way for all parties involved..not to get involved personally. And since when is it right and respectful to attack someone physically because you don't like what they are wearing or saying?

      February 28, 2012 at 2:01 pm |
  17. Joey Y

    Shameful. It's a ruling basically asserting that some people can't help but resort to violence. Shame on this judge for mentioning the laws in other nations also. This is a US matter, in a US court.

    February 28, 2012 at 11:27 am |
  18. OregonTom

    Sounds like simple assault to me. Even if the "assault " was just the act of trying to remove the costume.

    February 28, 2012 at 11:27 am |
  19. Kingofthenet

    The Judge sounds like SOME Southerners BEFORE the Civil Rights Era, i.e. I'll treat Blacks fairly, but I don't want to be REQUIRED to do so.

    February 28, 2012 at 11:26 am |
  20. Darwin

    Does this mean I can now start beating the cr a p out of nazi's with impunity? Cuz those guys really offend me.

    February 28, 2012 at 11:26 am |
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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.