Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus

There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce. The Judge identifies himself as a Muslim and says that Perce conduct is not what the First Amendment is supposed to protect. [UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.] [UPDATE2: Perce has responded to our blog and denied many of the factual representations made by Judge Martin].

Perce is the American Atheists’ Pennsylvania State Director and marched with other atheists, including one dressed as a creepy Pope. Here is the tape of the incident:

Perce says that Elbayomy grabbed him and tried to take his sign. Elbayomy was at the parade with his wife and children and said that he felt he had to act in the face of the insult. The officer at the scene, Sgt. Brian Curtis, correctly concluded that Perce was engaged in a lawful, first amendment activity. He therefore charged Elbayomy. While it looks like an assault, he was only charged with harassment.

The case, however, then went to District Judge Mark Martin who not only threw out the charge of harassment but ridiculed Perce as a “doofus.” He also proceeds to not only give an account of his own feelings (and say that he was offended personally by Perce’s action) but suggests that Elbayomy was just protecting his “culture.” The judge not only points to the Koran in the courtroom but his time in Muslim countries as relevant to his deliberations. Putting aside the problem of ruling in a case where you admit you have strong personal feelings, the lecture given on the first amendment is perfectly grotesque from a civil liberties perspective.

Here is part of the hearing transcript:

Well, having had the benefit of having spent over two-and-a-half years in predominantly Muslim countries, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Quran here, and I would challenge you, Sir, to show me where it says in the Quran that Muhammad arose and walked among the dead. I think you misinterpreted a couple of things. So before you start mocking somebody else’s religion, you might want to find out a little more about it. It kind of makes you look like a doofus. …

In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.

Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.

I don’t think you’re aware, Sir, there’s a big difference between how Americans practice Christianity – I understand you’re an atheist – but see Islam is not just a religion. It’s their culture, their culture, their very essence, their very being. They pray five times a day toward Mecca. To be a good Muslim before you die, you have to make a pilgrimage to Mecca, unless you’re otherwise told you cannot because you’re too ill, too elderly, whatever, but you must make the attempt. Their greeting is ‘Salam alaikum, wa-laikum as-Salam,’ uh, ‘May God be with you.’

Whenever it is very common, their language, when they’re speaking to each other, it’s very common for them to say, uh, Allah willing, this will happen. It’s, they’re so immersed in it. And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive. I’m a Muslim. I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you are way outside your bounds of First Amendment rights.

I’ve spent about seven years living in other countries. When we go to other countries, it’s not uncommon for people to refer to us as ‘ugly Americans.’ This is why we hear it referred to as ‘ugly Americans,’ because we’re so concerned about our own rights, we don’t care about other people’s rights. As long as we get our say, but we don’t care about the other people’s say.

The judge’s distorted view of the first amendment was magnified by Elbayomy’s counsel, R. Mark Thomas who called this lecture “a good dressing down by the judge. The so-called victim was the antagonist and we introduced evidence that clearly showed his attitude toward Muslims. The judge didn’t do anything I wouldn’t have done if I was in that position.”

I fail to see the relevance of the victim’s attitude toward Muslims or religion generally. He had a protected right to walk in the parade and not be assaulted for his views. While the judge laments that “[i]t’s unfortunate that some people use the First Amendment to deliberately provoke others,” that is precisely what the Framers had in mind if Thomas Paine is any measure.

Notably, reports indicate that Elbayomy called police because he thought it was a crime to be disrespectful to Muhammed. The judge appears to reference this by noting that in some countries you can be put to death for such an offense. Those countries are called oppressive countries. This is a free country where it is not a crime to insult someone’s religion — despite a counter-trend in some Western countries.

I also do not see how the judge believes that he has the authority to tell a religious critic that “before you start mocking somebody else’s religion, you might want to find out a little more about it.” Let alone call a person a “doofus” because he opposes religion.

To make matters worse, the judge is reportedly threatening Perce with contempt for posting the audio of the hearing.

The reference to the cultural motivations for assaulting Perce seems to raise a type of cultural defense. I have spent years discussing this issue with state and federal judges on the proper role of culture in criminal and civil cases. This is not a case where I would view that defense as properly raised. There are certainly constitutional (and yes cultural) norms that must be accepted when joining this Republic. One is a commitment to free speech. If culture could trump free speech, the country would become the amalgamation of all extrinsic cultures — protecting no one by protecting everyone’s impulses. Those countries referenced by the court took a different path — a path away from civil liberties and toward religious orthodoxy. It is a poor example to raise except as an example of what we are not. The fact that this man may have formed his views in such an oppressive environment does not excuse his forcing others to adhere to his religious sentiments.

Martin’s comments also heighten concerns over the growing trend toward criminalizing anti-religious speech in the use of such standards as the Brandenburg test, a position supported by the Obama Administration.

There are legitimate uses of the culture defense. However, when it comes to free speech, that is not just our controlling constitutional right but the touchstone of our culture.

I can understand the judge’s claims of conflicting testimony on the crime –though it seems to be that the officer’s testimony and the tape would resolve those doubts. However, I view this as an extremely troubling case that raises serious questions of judicial temperament, if not misconduct.

Source: ABC

323 thoughts on “Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus”

  1. Yes, he was being an asshole. But that doesn’t mean the muslim had a right to attack him. Did you see any Catholics there attacking the guy who was dressed up as zombie-pope? No, of course not. So what makes it okay for this religion, but not for others?

  2. and another thing…. even KKK members are protected in their speech from people attacking them, namely people of color. KKK insults the exact essence of someones being even more so than the essence of a chosen philosophy, so does that give them all a right to attack the KKK protestors? Right or wrong, it gives NO ONE the right to lash out at demonstrators or anyone for what they say. We have all got to stop our whining really. So quick to be offended. It is really starting to make me sick.

  3. As a Christian, I am appalled that this man (regardless of religion) was allowed to get away with attacking a demonstrator (regardless of his stance). That is just wrong. I see Christianity being bludgeoned on an almost daily basis, but that is okay because I am responsible only for myself, not what others do. This judge is making a mockery of our constitution and he should be dis-barred or whatever needs to be done to get him off the bench. I also feel the atheist guy should have had the right to protect himself if he felt his person was being threatened, which grabbing a sign it was not, but what if a muslim or anyone else from any other belief system decided to take justice in their own hands and kill him in their rage? Would that have been justified as well? The judge just gave them the okay for Muslims to kill if need be without impunity, after all this is the essence of Islam to be enraged by this behavior.

    Furthermore, why should this atheist be told he should look into these belief systems before mocking them? That is just ridiculous. No one should have to do that, and does he really think that would stop them from mocking? Stupid judge.

    On one other note though, I do not know why atheists are so adamant about taking such time and effort to spew their own hatred in the first place. Respect is given where respect is due. I personally do not respect anyone, religious or not, who acts out with such hatred, especially when their motive is to simply mock, offend and judge others just to be hurtful and hateful. It is their right though, and I wouldn’t want it any other way.

  4. the judge wasn’t putting Islam above Christianity, he was putting the law in front of stupidity. Preponderance wasn’t proven, therefore he had to dismiss the case. If the glove don’t fit u must acquit.

    1. I see. The word of one Muslim is worth more than the testimony of the cop who said the Muslim admitted to assaulting the guy, is worth more than the victims testimony, the video tape, and the prohibited testimony of the other demonstrator. So I count four different pieces of evidence that are worthless against the testimony of ONE Muslim. That is NOT being biased for Muslims? I have a bridge for sale that you will LOVE!

  5. This Ernie guy got what he deserved. This jerk goes around pushing the bounds of his 1st amendment right and when someone acts on it he cries like a lil b***h. The Muslim guy was also in the wrong for putting his hands on him I think they should have both been put in jail . Maybe Ernie will use a lil more common sense in the future.

  6. You tell me how the hell someone can make a judgment aganist someone with NO proof from the other person, I guess it’s ok for everyone to go into Martin’s court and lie about things and not have proof that the stuff ever existed. Go ahead Mechanicsburg, sue you neighbors, sue your siblings, sue everyone you know, in this jerk-offs court you don’t have to prove anything!!!!he needs Off the bench NOW!!!

  7. WHAT the hell IS THIS??

    YOU people of PA better get off the GOD DAMNED couch and get this ASSHOLE out of the courtroom immediately?


    1. If the defendants lawyer has a tape of the trial, he would be a FOOL if he did not burn it.

    1. This judge is so far out of it, I am stunned. I guess I have missed all the times that atheists have been attacking, firebombing, and killing church goers as the Klan did to blacks. I would agree that the KKK should not be allowed to march because they have a long history of illegal acts such as murder, and terrorism. Those kinds of people have lost their first amendment rights by their criminal actions. The atheist was simply mocking the stupid beliefs of religious people, especially Muslims.

  8. There seems to be a lot of doofuses atheist or otherwise queuing up to slaughter this guy on the basis of pure falsehoods. I find it beyond strange…


    There seems to be at least one doofus Lutheran queing up to slaughter this [atheist] on the basis of pure falsehoods [and some novel ideas about the First Amendment]. I find it beyond strange…

  9. The judge is NOT a muslim convert. He is NOT a muslim at all. He is a Lutheran. Listen carefully, he actually says he is NOT a muslim. He served his country in the military in a muslim country putting himself in harms way for the USA, what is wrong with using that experience? There seems to be a lot of doofuses atheist or otherwise queuing up to slaughter this guy on the basis of pure falsehoods. I find it beyond strange…

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