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. dave

    I am not a fan of athiests, however, the judge ruled incorrectly. In order for the judge to have ruled in favor of the athiest, a baptist or catholic would have had to be involved. I am surprised that noone picked up on the fact that the judge ruled the way he did because he was afraid.

    February 28, 2012 at 12:01 pm |
    • JJ

      He ruled that way because the Judhe himself is a Muslim. he converted to Islam while in Iraq. He should have recused himself from this case.

      February 28, 2012 at 12:06 pm |
  2. Ed

    Boy, some people just enjoy getting indignant, don't they?

    I'm a conservative guy. On the centrist side of conservative, but conservative nonetheless. I'd be all for locking up the alleged attacker if he were proven guilty, whether or not the alleged victim ridiculed Mohammed. And I'm disturbed by how some people mince around anything having to do with Muslims but have no problem ridiculing Christians. So I'm not here to back the Muslim guy.

    But we don't send people to jail unless there is evidence beyond a reasonable doubt. Or at least we try not to. In this case, there wasn't anything close to that. Even if the guy who claimed to be attacked were an innocent bystander, his word alone would rarely be enough to convict someone. Factor in the fact that this guy wasn't an innocent bystander - he was a guy out to provoke Muslims claiming that a Muslim attacked him - and you don't even have anything close to a case.

    I'm curious: This was a parade. What did everyone else have to say? No witnesses for either side?

    February 28, 2012 at 12:00 pm |
  3. pat

    Just wait until next year's Halloween parade. Your going to see more mohammeds than a judge will know what to do with.

    February 28, 2012 at 12:00 pm |
  4. Badly-Bent

    Say good bye to the First Amendment!

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

      Only if we let it happen!!!!!!!!!


      February 28, 2012 at 1:34 pm |
  5. jon

    Treat others as you wish to be treated. Athiests should not be making fun of religious beliefs. True Athiests leave other religions alone and do not push their beliefs upon others. If you do then you are not an Athiest. You are an anti-religious cult.

    February 28, 2012 at 11:59 am |
    • pat

      It doesn't matter if you're a true atheist, a pretend atheist, or whether you represent all atheists or not, it is about free speech.

      February 28, 2012 at 12:02 pm |
    • Heroicslug

      New Atheism has moved away from the concept that religion should be respected.

      Religion values faith, which is belief without evidence.

      To value such a thing is to be value a the dangerous practice of action without thought.

      Religion – and it's prerequisite concepts – have no place in a modern society and should be ostracized, ridiculed, and debased wherever and whenever possible.

      February 28, 2012 at 12:32 pm |
  6. Saboth

    Guarantee the judge was a bible thumper, simply "sticking it to" the atheist. He has a right to say/wear whatever he wants. You don't like it? Go look in another direction.

    February 28, 2012 at 11:58 am |
    • John

      So, can we tell the atheists to "go look in the other direction" when they protest religious Christmas displays? Of course not, because liberal atheists have more rights than Christians.

      February 28, 2012 at 12:10 pm |
    • Dan. M


      "Protest" is not the same as physically attacking someone. The muslim in this case had every right to PROTEST the portrayal of muhammad as a zombie. He did NOT have the right to attack a person.

      Learn the difference between "protest" and "attack."

      February 28, 2012 at 12:23 pm |
  7. Sighko Sis

    AT LAST! Sounds like it's open season on the Phelps clan – the ones who picket soldiers funerals. I guess the Supremes got it wrong.

    February 28, 2012 at 11:57 am |
  8. Wimps

    Let me get this straight...
    I am reading that one guy tries to cause trouble to a CROWD of adult Atheists, and the most that could be done was everybody crying to their mommy about the bad man?

    Sheesh....grow some balls guys!

    February 28, 2012 at 11:56 am |
    • Whynot

      Well said, couldn't agree more. Pussifing of America

      February 28, 2012 at 12:06 pm |
  9. denver2

    Protected speech absolutely covers objectionable speech and it is shocking to hear a sitting judge say otherwise.

    February 28, 2012 at 11:56 am |
  10. pat

    So I can break the law if I feel I have an over riding religious obligation to do so and then use that as a defense?

    February 28, 2012 at 11:56 am |
  11. JJ

    First of all he should have removed himself from this case. He admits he converted to Islam while in Iraq. This case should not have been heard in fronty of his bench. Secondly, his speech afterwards was so against what the 1st amendmant stands for it's scary.This judge needs to be removed from the bench !!!

    February 28, 2012 at 11:55 am |
    • nosferatu

      I'm from the area and I believe your second sentence is not true. Care to cite a legitimate source?

      February 28, 2012 at 12:01 pm |
    • Dawn

      Dude, read the freakin' article again! Maybe this time use a pair of glasses! The judge is LUTHERAN!

      February 28, 2012 at 12:12 pm |
    • JJ

      Firstly it was reported on cnn the judge is a converted muslim. And you can go here as well: http://newsone.com/nation/casey-gane-mccalla/judge-rules-muslim-was-justified-in-attacking-zombie-muhammed/

      February 28, 2012 at 12:12 pm |
    • JJ

      @dawn. You need to read the article. The judge converted to Islam while serving in Iraq !!


      February 28, 2012 at 12:14 pm |
    • JJ

      @dawn. . The judge converted to Islam while serving in Iraq !!


      February 28, 2012 at 12:16 pm |
  12. Bob Dobbs

    F Mohammed. Pederaf.

    February 28, 2012 at 11:55 am |
  13. It's time to step down, your Honor

    "You have that right, but you're way outside your bounds of First Amendment rights," speweth the confused juror. He has the right but he doesn't have the right?? Which is it?

    February 28, 2012 at 11:55 am |
    • Blackrobe


      You can't yell "fire" in a crowded theater.

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

      Please explain how the 'fire' example in any way relates to this.

      February 28, 2012 at 12:02 pm |
  14. koorihawk

    The issue is free speech. Look at westboro baptist and their publicity stunts at the funeral of fallen soldiers. It is legal for the KKK to demonstrate publicly. I find both these groups to be very offensive but that does not give me the right to physically assault them. It is legal for them to demonstrate under our first amendment. Is their speech any less offensive to certain individuals. Its in my opinion that the judge is wrong. What if the tables were reversed and a christian or other religious individual was attacked by an atheist. I can promise you that atheist would be in jail.

    February 28, 2012 at 11:53 am |
    • anon

      Agreed. Koorehawk–we have suffered through KKK and Nazi rallys, etc. westboro BS was also protected under the LAW! What this man did is no different. He deserves protection, even when we don't like what he is saying. This judge is WRONG, WRONG, WRONG. I do not want sharia laws in this country EVER! They should not be recognized, and I will fight til death for US citizens against islam.

      February 28, 2012 at 12:01 pm |
    • Kerry

      It clearly says there wasn't enough evidence of it nor witnesses. It was his word vs the Muslim's word.

      "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."

      If there was evidence, I'm sure he would've done something about it.

      This judge is clearly intelligent. Can't say the same for others involved in the case...

      FYI I'm atheist also.

      If the Westboro Baptist church was protesting somewhere and people were telling them off, it wouldn't be an issue for the courts until physical altercations took place that were witnessed or had some form of proof.

      Love all the Muslim haters on here. Not all Muslims are extremists. Some are, others are not. Stop stereotyping. Not all Catholics and Christians are good people. Some are, others are not. THINK...and stop blindly (...hate to use that word since I work with the blind) or tunnel-visionedly hating people. Until that happens, the world will continue to be laden with strife.

      February 28, 2012 at 12:34 pm |
  15. Christine

    What I love most about this story?
    The judge had the courage to step up and call it as he saw it. Without proof, it is what it is.
    Plus, I'm so sick of Asinine Americans using the 1st Amendment as a magic shield with which cowering behind, they can do and say anything their pea brains think of.

    February 28, 2012 at 11:53 am |
    • JJ

      Are you an american ? If you are you should be very concerned that a Muslim heard this case(the judge converted to Islam while in Iraq) and ruled in favor of the Muslim. Innocent or not the speech he gave afterward basically means you dont have 1st amendment rights in his court. This case should not have been heard in his court.

      February 28, 2012 at 12:03 pm |
    • Jack

      Yes I agree those Dam Christians keep forcing Christmas on us each year and I think I should Be able to go beat up everybody that say Merry Christmas to me.........Now Think About what you wrote.What I wrote and what you wrote both sounds REAL STUPID.

      February 28, 2012 at 12:09 pm |
    • Russ

      Right on the money, as was the Judge. The distinguished law professor left out the pragmatic element that exists in bench trials; judgment based on the facts. The Commonwealth could not prove beyond a reasonable doubt, a heavy burden in ALL jurisdictions, that the defendant committed the crime alleged. At the end of the trial, the Judge noted that an incident did, in all probability, occur, and the instigator of that incident was the ridiculously offensive gentleman who knows he is performing an act a segment of the world, and parts of our society, deem worthy of death. He wanted to get a reaction, he instigated a reaction, and involved himself in a reaction. The story of being chocked from behind is not plausible without physical evidence such as red marks or bruising on the neck. The alleged blowhard, er, victim, could not satisfy the judge he was attacked as claimed. Why an arrest in the first place? Simple assaults without any visible harm is typically dismissed at the scene. The Muslim community must wonder why such a stupid scuffle between idiots ended up with an arrest of the Muslim.

      February 28, 2012 at 12:13 pm |
    • Kerry

      J.J. are you an American? I'm very concerned that you support convicting someone with no evidence.

      Here, let me repeat it in case you missed it.... NO EVIDENCE.

      Converted Muslim or not, there is...here it is again for you, 3rd time's a charm... say it with me...no...here we go!... evidence.

      February 28, 2012 at 12:42 pm |
  16. Illeagle-j1

    Ernie Perce, decided that he needed to be punished. He taunted another man's religion. He got only half of what he deserved. A "MAN", respects and accepts that others have the right to believe differently that he does. That is what makes America, unique. Respect and acceptance for others. He should thank is Non Gods, that he still has his testicles, if someone stood before me and insulted my way of life, I would first ask that person to go away, if that person refused than I would take legal, action right after I used a butter knife to remove is testicles..

    February 28, 2012 at 11:53 am |
    • Mark from Middle River

      So are you Chuck Norris, Clint Eastwood or just the Drill Sargent from Full Metal Jacket?

      February 28, 2012 at 11:55 am |
    • Jack

      Thank GOD You a freak from the desert and not an American, Because if you were you would not have responded that way.

      February 28, 2012 at 12:04 pm |
  17. nosferatu

    Why should I walk on egg shells around these magic carpet riding ragheads? They certainly think nothing of degrading us.

    February 28, 2012 at 11:52 am |
  18. The 666 Club

    Sounds like the guy got butt hurt because he got beat up by a camel poker after making fun of them.

    February 28, 2012 at 11:51 am |
    • John

      exactly. It's someones rhetoric vs. reality. and geuss what, reality won out.

      February 28, 2012 at 12:06 pm |
    • Whynot

      Everybody is the tough guy until they get punched in the mouth.

      February 28, 2012 at 12:10 pm |
  19. Beezbo

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

    When did U.S. judges start taking islamic law into consideration? This is the United States, not some craphole third-world muslim country. Who cares what the ragheads would do in their own land?

    February 28, 2012 at 11:50 am |
    • Joe Smith

      Don't kid yourself. We're well on the way to becoming a craphole country.

      February 28, 2012 at 11:56 am |
    • JJ

      Because the Judge is Muslim. He converted to Islam while in Iraq.

      February 28, 2012 at 11:58 am |
    • Kerry

      Pointing out something doesn't mean consideration in the case. It just means that he's pointing it out.

      February 28, 2012 at 12:47 pm |
  20. mfulk

    Is it any wonder that a man who made his career in our army isn't smart enough to understand what he was fighting for?

    February 28, 2012 at 11:50 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.