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Judge rules against atheist attacked in costume [Video at link]
ABC News ^ | February 22, 2012 | Dennis Owens

Posted on 02/27/2012 10:00:42 AM PST by James C. Bennett

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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.]


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

1 posted on 02/27/2012 10:00:52 AM PST by James C. Bennett
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To: James C. Bennett

The moral of the story is,if someone puts their hands on you-have the skills needed to put them on the ground.Hard and fast.


2 posted on 02/27/2012 10:04:23 AM PST by Farmer Dean (stop worrying about what they want to do to you,start thinking about what you want to do to them)
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To: James C. Bennett

Maybe the judge thinks what Perce did was like waving a red flag in front of a raging bull!


3 posted on 02/27/2012 10:05:55 AM PST by Jack Hydrazine (It's the end of the world as we know it and I feel fine!)
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To: Jack Hydrazine

Well, then the raging Muslim bull should be put down for assaulting the infidels.


4 posted on 02/27/2012 10:07:28 AM PST by James C. Bennett (An Australian.)
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To: James C. Bennett
Its clear these muslim primitives bring middle east-style hell wherever they go.

WHY do we allow them into our country?

5 posted on 02/27/2012 10:07:51 AM PST by skeeter
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To: James C. Bennett

Sharia Law is here.

Submit or fight.


6 posted on 02/27/2012 10:08:02 AM PST by MeganC (No way in Hell am I voting for Mitt Romney. Not now, not ever. Deal with it.)
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To: James C. Bennett

Judge rules against atheist attacked in costume

MUSLIM Judge rules against atheist attacked by MUSLIM


7 posted on 02/27/2012 10:13:03 AM PST by Iron Munro ("Don't pick a fight with an old man. If he is too old to fight he'll just kill you." John Steinbeck)
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To: MeganC

A Moslem attacked an atheist. On whose side will the ACLU come down?


8 posted on 02/27/2012 10:13:29 AM PST by Enterprise ("Those who can make you believe absurdities can make you commit atrocities." Voltaire)
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To: James C. Bennett

The Magistrate’s response is here:

http://volokh.com/2012/02/25/zombie-mohammed-judge-responds/

“This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).

I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).

He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.”


9 posted on 02/27/2012 10:14:04 AM PST by willamedwardwallace
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To: Iron Munro

He’s not a Muslim according to his response. He’s also a Lt. Colonel and did two tours in Iraq.

http://www.pennlive.com/midstate/index.ssf/2008/02/mechanicsburg_judge_headed_to.html


10 posted on 02/27/2012 10:16:24 AM PST by willamedwardwallace
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To: James C. Bennett

This country is toast.

The judge’s argument - might make sense - from the point of view of a regular guy on the street - who hasn’t really thought through what he is saying. It would be wrong - but excusable. But - a judge? With that - frankly - insane comments? Should be disbarred. He has no concept of what he is doing up there.


11 posted on 02/27/2012 10:16:48 AM PST by Eldon Tyrell (question,.)
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To: Enterprise
[ A Moslem attacked an atheist. On whose side will the ACLU come down? ]

ACLU's response...


12 posted on 02/27/2012 10:19:23 AM PST by GraceG
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To: Eldon Tyrell

He can’t be “disbarred”. He isn’t a lawyer. District Judges in Pennsylvania are not required to be lawyers. They are elected magistrates who handle low level criminal cases and small claims actions.


13 posted on 02/27/2012 10:20:23 AM PST by willamedwardwallace
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To: Enterprise

Would have been very different had it been a Christian that attacked an Atheist!


14 posted on 02/27/2012 10:21:47 AM PST by Captain PJ
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To: willamedwardwallace
He’s also a Lt. Colonel and did two tours in Iraq.

He apparently was there too long. We don't have martial law here or sharia law either. The 1st amendment means something.
15 posted on 02/27/2012 10:25:14 AM PST by TalonDJ
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To: willamedwardwallace
On the tape he identifies himself as a Muslim. Either the judge misspoke (riiiight) or he is lying in his response. Either way, it does not alter the fundamental unjustness of his actions.

His prior military service has no bearing on the facts. He is obviously unfit for office and should be removed.

16 posted on 02/27/2012 10:27:22 AM PST by jboot
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To: Jack Hydrazine

“Maybe the judge thinks what Perce did was like waving a red flag in front of a raging bull!”

Bulls are dumb animals and are not expected to be able to conform themselves to difficult rules of conduct like, “don’t attack humans.” Muslims, OTOH, . . .


17 posted on 02/27/2012 10:27:22 AM PST by ModelBreaker
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To: James C. Bennett

this stupid ruling would immediately be overturned upon appeal.... but what these judges count on is you not being able to afford to appeal this crap... so, what is a civilian to do??? File a complaint with the state board that oversees the judiciary. They HAVE to investigate. At a minimum this clown’s laundry would be aired for all to see, and we know that a commie cannot operate in the daylight..


18 posted on 02/27/2012 10:28:58 AM PST by joe fonebone (Project Gunwalker, this will make watergate look like the warm up band......)
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To: jboot

The recording was made by the atheist defendant. It is poor quality, and very well could have been edited. The atheist posted the tape to Youtube. It isn’t an official recording.

Keep in mind that the atheist was also attacking Christianity to, and an atheist has no objective moral basis for not lying to suit his interests.

This is a pretty good example of a recording not telling the whole story.


19 posted on 02/27/2012 10:30:46 AM PST by willamedwardwallace
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To: lightman; Charles Henrickson
Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).

...He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

Last paragraph prolly means he's of the ELCA stripe.

20 posted on 02/27/2012 10:32:26 AM PST by Cletus.D.Yokel (Catastrophic Anthropogenic Climate Alterations - The acronym explains the science.)
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