Did a Fresno man who pepper-sprayed protesters commit a hate crime, or was he merely involved in a political argument that got out of hand?

Defense attorney Marc Kapetan described his client Brian Turner’s actions as the latter in court on Tuesday.

However, a Fresno Superior Court judge ruled there was enough evidence against Turner to try him at trial on allegations of illegally using tear gas with hate crime enhancements. A third charge was dropped.

According to court testimony, Turner, 64, was driving home with his wife, when he pulled up to the intersection of Blackstone and Nees avenues on May 15, 2021. The car next to him included three participants in a demonstration supporting Palestine.

Video captured what happened next. They waved the Palestinian flag and got into an argument with Turner. One man got out of his car and approached Turner, who pepper-sprayed the men.

Judge Alvin Harrell III accepted the argument that Turner used self-defense to neutralize a perceived threat from Faisal Aboelrish. He did not for the two men inside the car hit by the spray.

Turner faces an Aug. 29 arraignment on the two remaining charges. If convicted, he faces a maximum of seven years and four months in prison.

“We are very happy the judge ruled that Mr. Turner acted in self-defense against Mr. Aboelrish’s threatening actions, and we look forward to showing that he acted in self-defense against the other two protestors,” Kapetan told GV Wire.

Prosecutor Anthony Muia and District Attorney Lisa Smittcamp declined to comment about the case.

Judge: Two Counts Will Stand

Tuesday’s preliminary hearing resumed after a three-month delay. Turner’s attorney filed a motion to disqualify Harrell after the first day of hearings in April. That motion was denied.

In April, the three alleged victims — Aboelrish, driver Ahamd Qutami, and front-seat passenger Faisel Alqatami — testified that Turner reacted to their flag-waving from the car with disdain. A heated argument with profanity ensued. The three men testified Turner made comments to the effect of “We don’t like you Palestinians. We’re going to kill all of you guys.”

“I don’t know how you can find that’s not hateful speech. I’m not saying Mr. Turner is a racist or anything along those lines. I’m making a decision based on his alleged statements to these alleged victims,” Harrell ruled.

“There is no reason in the evidence for him (Turner) to have any fear towards those individuals (in the front of the car) in order to exercise any self-defense. And the testimony was that they were indeed sprayed in the face. I wasn’t there. I don’t know. And ultimately, a jury is going to have to decide what happened,” Harrell said.

Prosecutor: Men Suffered Injuries

Muia. the prosecutor, said the evidence showed all three men suffered injuries consistent with pepper spray.

“The one victim that did step out of the vehicle was put back into the vehicle prior to the defendant deploying pepper spray. It … removed the immediacy of the amount of any necessary force,” Muia argued.

Muia argued that Turner’s actions amounted to a hate crime.

“This case is clear. The defendant said, ‘I will kill a Palestinian’ or ‘Israel will kill all Palestinians’ at a Palestinian protest or to support Palestinians in Palestine right before pepper spraying them. The bias causes the defendant to act,” Muia said.

Muia referred to the definition of hate crimes in the California Jury Instruction code. It says a hate crime allegation must be in whole or part because of the victim’s actual or perceived ethnicity, religion, or nationality (among other factors).

It also requires that “the bias motivation caused the defendant to commit the alleged act.” Bias “must have been a substantial motivating factor.”

Kapetan on the Defense

Kapetan argued that Turner’s actions were not based on race, but on perceived threat.

Turner had no intention of creating trouble that evening, Kapetan said. He called the incident “a political discussion in the street that went awry.”

Turner did not testify.

Kapetan said the three men were the aggressors.

“When he (Turner) stated ‘I don’t stand with you guys, I stand with the Israelis,’ is when the protesters in the car became enraged,” Kapetan said.

Kapetan blamed politics by Smittcamp’s office as motivation for prosecuting Turner.

“It was forced to be a political issue here in court purely for the optics of the politics of it all,” Kapetan said in closing arguments at the preliminary hearing.

Kapetan Wins Evidence Issue

Kapetan scored a victory by winning a motion to exclude testimony about a hand gesture made by Turner.

Fresno police officer Levon Tarakjian testified that a gesture Turner made, captured in video and a still photo, could be that of White supremacy. He said he found evidence that the gesture could be associated with supremacists by searching online.

The “OK” gesture could also mean White Power, Tarakjian said on the stand.

Kapetan argued that the officer did not have the proper foundation or expert training to make such a conclusion. The alleged victims never complained of a racist hand gesture, Kapetan said.

“The officer doesn’t have proper foundation, other than saying, you know, social media, and we’re going to hear that highly inflammatory thing about a client who’s never had any association with anything like this,” Kapetan said.

At one point, Kapetan threatened Muia with a prosecutorial misconduct motion, if he continued to proceed.

Harrell agreed with the defense, and the hand gesture testimony was excluded.

Hearing Resumed After Three Months

The preliminary hearing resumed after a three-month break. After the prosecution presented witnesses in April, Kapetan filed a motion to disqualify Harrell.

Kapetan alleged that comments made by Harrell during a sidebar hearing in chambers demonstrated bias. Specifically, Kapetan said Harrell could not be fair in ruling on the hand gesture.

Another judge ruled that Harrell exhibited no bias, and the case would resume.