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Minnesota man, accused of throwing raw pig's foot, claims bias charge is unconstitutional

WILLMAR, Minn. — The lawyer for a man accused of tossing a raw pig's foot onto a table at the Willmar Farmers Market has filed another motion for dismissal, this one seeking dismissal of the most serious charge, which alleges bias.

Joseph Francis Fernkes, 61, of Willmar, faces three charges stemming from an incident in August. He is accused of throwing the raw pig's foot onto the table where Muslims from the local Somali community were selling vegetables. The vegetables could not be sold after the raw meat had been on the table.

Fernkes' lawyer, John Mack of New London, argues that the statute used to charge Fernkes with a bias crime is unconstitutional.

Fernkes faces a gross misdemeanor charge of third-degree damage to property based on bias. That section of the state statute applies to someone who intentionally damages another's property because of the property owner's race, color, religion, sex, sexual orientation or disability.

Fernkes is also charged with two misdemeanor charges: fourth-degree intentional damage to property and disorderly conduct, which is offensive, obscene, abusive, boisterous or noisy conduct.

Fernkes had earlier this month sought dismissal of the disorderly conduct charge on free speech grounds.

Kandiyohi County District Court Judge Michael Thompson has taken the motions under advisement, according to court records.

The new motion for dismissal regarding the bias charge was filed Oct. 27. In a memorandum, Mack cited the state statute used to charge Fernkes with a bias crime and argued that the statute is unconstitutional.

Since the bias alleged in the statute would constitute a "hate crime," Mack wrote, it should be considered unconstitutional, because the U.S. Supreme Court struck down a St. Paul law about hate crimes in 1991.

The city of Willmar has not yet responded to the new motion filed last week.

Briefs were due by Tuesday in the earlier motion for dismissal, and the city of Willmar responded that Fernkes' actions are not protected speech and the motion should be denied.

"Defendant was not merely expressing a controversial political opinion in a vulgar way," Assistant Willmar City Attorney Carlotta Navarrette wrote. "He was directly abusing and intimidating innocent people by throwing a pig's foot and insulting the vendors, which is not protected speech."

In addition, she wrote, Fernkes' conduct could be considered "fighting words," which are not protected speech. "The incident of Aug. 12 ... constituted 'fighting' words because (Fernkes') statements and conduct were personally abusive epithets" which were intended to inflict injury or incite a breach of the peace.

Navarrette quotes Fernkes' words — "F*** you, Mohamed, I don't like you," and "Try and sell this, Mohamed" — and she writes that the vulgar language along with the raw pig's foot, which Muslims find offensive, made his conduct "fighting words," which are not protected speech.

Fernkes was ticketed for disorderly conduct in August. The other charges were added later.

The vendors and witnesses at the market told Willmar police officers that they found Fernkes' actions offensive.

Linda Vanderwerf

I cover education issues for the West Central Tribune and have worked for the paper since 1995. I have worked in journalism since 1981.

Follow me on Twitter: @lindavanderwerf

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