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. james

    "Death to the Infidel" says the judge–Allah would not approve–

    February 28, 2012 at 3:21 pm |
    • Jim

      Hello Judge-This atheist was not celebrating halloween in saudi . He was very much in the US if you did'nt notice that.

      February 28, 2012 at 3:25 pm |
  2. cor

    It's a relief to see atheists attacking other religions other than Christianity for once.

    February 28, 2012 at 3:21 pm |
    • Nonimus

      Rationality doesn't play favorites.

      February 28, 2012 at 3:28 pm |
  3. Dennis

    This Judge made a wrong ruling. Didn't they have a video tape?

    February 28, 2012 at 3:20 pm |
    • Maya

      He excluded the tape from evidence, as well as the testimony of the police officer.

      February 28, 2012 at 3:22 pm |
    • Nonimus

      Interesting, I missed that. Do you have a link?

      February 28, 2012 at 3:29 pm |
    • Nonimus

      I hate to say this but the American Atheist folks may have misconstrued some parts. I don't know about any ruling on a video tape ruling, but the audio I heard didn't sound quite the same as the quoted text, but it was pretty garbled. And, although the AA site said, "a Police Officer who was at the scene also testified on Mr. Perce’s behalf, to which the Judge also dismissed by saying the officer didn’t give an accurate account or doesn’t give it any weight," a newscast, also on youtube, interviewed a Sgt. Brian Curtis, as the officer that spoke to both parties "a few blocks later". It sounds like he didn't witness anything.

      In all fairness the resource I viewed were from links on the AA site, within the article on this subject.

      February 28, 2012 at 4:13 pm |
  4. Island Jack

    I am an atheist, but I don't go around trying to make fun of others beliefs, no matter how distorted or outdated they are. But by the same token, if someone attacked me for what I do or don't believe, they would not walk away from the encounter. I am constantly mystified how otherwise intelligent people can believe in a myth like a god, any god.

    February 28, 2012 at 3:20 pm |
  5. Justme

    They are on to us! Everyone quick! To the Batmobile!

    February 28, 2012 at 3:18 pm |
  6. biggal195

    Martin says that he ruled the way he did because the prosecution did not present enough evidence to prove their case beyond a reasonable doubt. But if that's true, then why did he feel compelled to give a lecture to Perce? What really bothers me is that he actually said that Perce was "way outside your bounds of First Amendment rights." Excuse me? So, the Westboro "Baptist Church" folks are not "way outside (their) First Amendment Rights" when they disrupt funerals, but a guy in a Halloween costume is? I don't know how they select judges in Pennsylvania, but if they are elected, the Pennsylvanians need to remember this nut at election time.

    February 28, 2012 at 3:18 pm |
    • Jen


      February 28, 2012 at 3:27 pm |
  7. Eric

    His word against the others. Case dismissed!

    February 28, 2012 at 3:17 pm |
    • Maya

      Even without the video tape, it is Perce's word AND the police officer's word against Elbayomy's word (he actually admitted the attack to the police officer originally).

      February 28, 2012 at 3:23 pm |
  8. JimBob

    tj, you can't possibly be serious. This guy was making a political statement–which he has every right to do. The fact that someone else may disagree with that statement in no way gives them the right to attack him physically.

    February 28, 2012 at 3:17 pm |
  9. carlyjanew6


    February 28, 2012 at 3:17 pm |
  10. Christian

    In America, Atheists are the last class of people that it is allowable to discriminate against.

    If this was a Christian against a gay person, or a Catholic against a Jew, he would have been prosecuted.

    Because it's an evil Atheist, it's OK.

    February 28, 2012 at 3:16 pm |
    • Jen

      I think you are right. That's maybe what this judge's judgement based upon.

      February 28, 2012 at 3:30 pm |
  11. Leucadia Bob


    February 28, 2012 at 3:16 pm |
  12. tj

    I am a liberal believer in free speech! However the harassment in this instance came from Perce! Hie sole purpose was to incite and bully! Period. This was not free speech, this was a man looking for a lawsuit! Careful what you ask for, Mr. Perce!

    February 28, 2012 at 3:16 pm |
    • Maya

      Perce has not sued anyone. This was a criminal complaint.

      The First Amendment protects even speech that is offensive.

      February 28, 2012 at 3:21 pm |
    • Phineas

      TJ, call yourself what you like, but you're certainly not a believer in free speech.

      February 28, 2012 at 3:38 pm |
  13. Gary

    This judge is a moron.
    Violence is never a proper response to speech you don't agree with.
    I dont care who you do or dont believe in.
    effin moron.

    February 28, 2012 at 3:14 pm |
  14. reason

    Here's some great legal commentary:


    February 28, 2012 at 3:14 pm |
    • tj

      Really? Pam Gellar as "great legal commentary"???!!! She is a bigot, racist, crazy woman! This is a political joke! Keep it up with your divide and conquer routine If you must but the name "Pam Gellar" is laughable!

      February 28, 2012 at 3:19 pm |
    • reason

      She seems completely rational in the video.

      February 28, 2012 at 3:44 pm |
  15. JimBob

    It doesn't matter how offended you might be by someone's words-you NEVER have the right to physically attack them in retribution. It is ALWAYS against the law. Do people really not understand that?

    February 28, 2012 at 3:13 pm |
    • reason

      Apparently the judge does not understand it. What a disgrace.

      February 28, 2012 at 3:15 pm |
    • Bill

      Actually, look up "fighting words doctrine".

      February 28, 2012 at 3:22 pm |
  16. fred bazzeeda

    this judge needs to be removed from his post and position and barred for such statements and judgements.

    February 28, 2012 at 3:13 pm |
    • Hingie

      the judge did the right thing by letting it go. Who cares about these damn muslims and if they get offended. they can go back to the middle east if they dont like it. If it was regarding Christianity, this damn judge would have jailed the Christian.

      February 28, 2012 at 3:28 pm |
  17. nathan

    this judge needs to be "corrected"

    February 28, 2012 at 3:12 pm |
  18. Judge Kudi

    I would admonish the muslim for taking part in a pagan parade such as the halloween. What was a muslim doing there to begin with?

    February 28, 2012 at 3:11 pm |
    • Epidi

      The same reason many Christians go to these parades – to amass Pagan candy! I'm Pagan – I don't mind the parades or the parodies everyone makes of our holidays – all are welcome here. Just keep the conversion preaching to yourselves please. 🙂

      February 28, 2012 at 3:18 pm |
    • Jim

      It is not as if this atheist knocked on a muslim man's door and showed off his costume.

      February 28, 2012 at 3:21 pm |
  19. DC


    "We're slowly becoming a Muslim police state."

    Seriously? I mean, seriously? No really – seriously?

    Yeah, because local governments all over the country tell Christian congregations they're not allowed to build churches or wear vestments in public all the time, right?


    February 28, 2012 at 3:10 pm |
  20. jim

    Apparently Pennsylvania will make anyone a judge.

    February 28, 2012 at 3:10 pm |
    • MNMartin

      It will also elect a Santorum

      February 28, 2012 at 3:21 pm |
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