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

soundoff (2,453 Responses)
  1. inewt

    if mohammed was a prophet he was a prophet of doom. All religion is worthy of mockery.

    February 28, 2012 at 3:09 pm |
  2. Mike

    This guy was a JAG. Got sniped at? Got "blown" up? Where at the coffee shop in the green zone? Prove it Martin because I'm calling your lying @$$ out.

    February 28, 2012 at 3:09 pm |
  3. William

    Welcome to progressive America, folks. The politicians rule us, rather than represent us, and the justice system has been replaced by a legal system wherein the judges and lawyers play games at the expense of the taxpayers.

    February 28, 2012 at 3:09 pm |
  4. In All Fairness

    If it really went down as Mr. Perce claimed, why were there no corroborating witnesses? This happenened during a PARADE! Where was this "Carl" Mr. Perce was calling for? Clearly, LACK OF EVIDENCE. One person's word against another. ... but why would a rational person deliberately insult someone else's beliefs just for fun??!?

    February 28, 2012 at 3:08 pm |
  5. Ted

    How I see this is on one hand I completely agree with what the judge had to say. And, although I have no problems with any individual atheists per se, I do, at times, question their urge to organize and evangelize their non belief. On the other hand, if an assault occurred here, then justice was NOT served. PS when you are offended don’t burn my flag or shoot my brothers and sisters trying to give aid to your children…

    February 28, 2012 at 3:08 pm |
  6. Joi C.

    The judge had a good point,
    !st amendment does give freedom of speech, but if you talk the talk then be able to walk the walk. If you insult someone or their culture rather ir be Christian, Muslim, Mormon you might have something coming. Atheist or not if he were mocking Jesus Christ then I guess it would have been OK to attack him, but because it was the Muslim faith being insulted it was OK.

    February 28, 2012 at 3:08 pm |
    • momoya

      ASSAULT is a proper response to SPEECH in your moral code? So if I don't like something you say, I can beat you up? Good to know.

      February 28, 2012 at 3:11 pm |
  7. WVLady

    HOORAY FOR FREEDOM OF EXPRESSION IN AMERICA!!! If this muslim doesn't like what he saw tell him to GO BACK FROM WHENCE HE CAME!!!! I am sick to death of foreigners coming to America and telling Americans what we can and cannot do. This is NOT your country! If you are a "paper american," you are NOT a natural born American. These people come here and think because we are tolerant we can be pushed around and can have foreigners cramming their religion and customs down our throats. IF YOU muslims DON'T LIKE IT HERE, PLEASE, PLEASE, PLEASE, GO HOME AND STAY THERE!!!!

    February 28, 2012 at 3:08 pm |
  8. godisnotreal

    Some of the most gruesome and evil acts in history have been made in the name of God, Mohammad and other deities. Religious people will always condem these acts of evil until it is their religion performing them. I find it ironic that religion is associated with love and peace when history as well as current events shows us that religion only promotes hate and violence to anyone that doesn't agree with it. This judge clearly had enough evidence to convict the perpetrator if he had only done the job he took an oath to do. The judge was clearly prejudice against the athiest for insulting religion and made up his mind not to give a fair verdict. The judge was not using "fighting words" section of the 1st Amendment in this case. I clearly stated that there was not enough evidence when there was. People make fun of other people all the time and no one has a problem with it until it is about these stupid FICTIONAL characters. The judge should be dismissed from the bench and the case should be relooked at since the judge acted with prejudice against the victim.

    February 28, 2012 at 3:08 pm |
  9. JimBob

    Free speech means free speech. You can't yell fire in a crowded movie theater, but that's not what this was. The victim of the assault was making a political statement, which is entirely protected by his First Amendment rights. We don't have to agree with his statement; we can even hate him for it-but it is entirely unlawful to attack him physically. This judge should be removed from the bench and disbarred.

    February 28, 2012 at 3:08 pm |
  10. Hap Hazzard

    Why is is always a "Self-proclaimed atheist" and not a "Self-proclaimed Muslim" or "Self-proclaimed Lutheran"?

    February 28, 2012 at 3:08 pm |
  11. Stuck in the Middle

    So according to this judge it's now open season on Fred Phelps? I'd love to hear his rational on that.

    February 28, 2012 at 3:08 pm |
  12. richy rich

    When Americans will start leaning about the real problems in this country and stop wasting their energy on trash such as religion maybe we will be finally able to move on.

    February 28, 2012 at 3:07 pm |
  13. edwardo

    Bet if we went over there, and assaulted someone for ridiculing the bible, their courts wouldn't be on our side - at all !!! GUARANTEED !!!

    February 28, 2012 at 3:07 pm |
    • richy rich

      Ok then let's become like them

      February 28, 2012 at 3:08 pm |
    • biggal195

      Edwardo: No, as a matter of fact, there is a young Christian Pakistani woman (Asia Bibi) who tried to defend her faith when mercilessly harassed and teased by neighbors, who is now under a death sentence for "blasphemy."

      February 28, 2012 at 3:31 pm |
  14. factface

    Last time I checked, it's not against the law to be rude. However, physically abusing someone is.

    February 28, 2012 at 3:06 pm |
  15. DC

    If it's truly just a matter of lack of evidence, then so be it. Everyone is innocent until proven guilty, and if the alleged attacker couldn't be proven to be guilty then justice has been served.

    However, if the judge allowed anything else to influence him, this is an absolute travesty. This country was founded by people who 'ticked people off' by exercising what would become their First Amendment rights. We can question the alleged victim's judgement if we'd like, but that doesn't change the fact that he has the right to peacefully voice his religious views in public, whether it 'ticks people off' or not. If the allegation is true, his attacker did not have the right to voice his religious views with his fists. What each of their religious views are should be irrelevant.

    If the victim were Christian, would the ruling have been different? I wonder...

    February 28, 2012 at 3:04 pm |
    • momoya

      Person A used only his vocal chords.
      Person B then used his fists.

      How can person A be found responsible for person B's actions?

      February 28, 2012 at 3:08 pm |
  16. reason

    Here's video of this assault and some good legal commentary as well:


    February 28, 2012 at 3:04 pm |
  17. momoya

    Notice: If you think ASSAULT is ever a reasonable response to SPEECH, please detail your reasoning.

    February 28, 2012 at 3:03 pm |
  18. hilikus00

    I, myself, am an atheist...but I think this dude just wanted trouble. What he did is rude, and disrespectful, and shows his character as a human being.

    That being said, even the most stomach turning individuals have the same rights as the rest of us. Assault is assault...even if I would hold no ill will against the man doing it. If there was truly no proof, so be it...but the speech the judge made for his reasoning suggest otherwise.

    February 28, 2012 at 3:02 pm |
  19. richy rich

    So much time wasted on goddddddd. Move on !

    February 28, 2012 at 3:01 pm |
  20. Ron

    We see this b.s. more and more... anything someone does in the name of being "Muslim" or in the name of "Allah" is just fine and is tolerated. We're slowly becoming a Muslim police state..

    February 28, 2012 at 3:01 pm |
    • Nonimus

      Only in your bizarre perception of the world.

      February 28, 2012 at 3:25 pm |
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