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Felony charge dismissed in gun-brandishing case

Mark and Julianne Henry say they remain convinced that a neighbor who they claim threatened to shoot their dog this summer, alleging it had killed livestock, really had targeted them because of a prominent Black Lives Matter sign.

But Assistant District Attorney Chris Walsh said he ultimately made the difficult decision not to charge Matthew Bearry with a hate crime.

Bearry, 46, was charged initially with being a felon in possession of a firearm, a felony; and for brandishing a weapon and impersonating a peace officer, both misdemeanors. The felony has since been dismissed by a judge.

“This was a close call,” Walsh said. “One of the elements we would have had to prove for it to be a hate crime is that the crime was committed ‘for the specific purpose of intimidating or interfering with victim’s free exercise or enjoyment of a right secured by the Constitution, and that defendant did so because of (the) victim’s race.”

A hate crime can be committed against a person advocating on behalf of a group based on their race, he added.

“But in this case, we could not prove beyond a reasonable doubt that the defendant specifically intended to interfere with the victim’s civil rights of advocating for Black Lives Matter because nothing was specifically done or said invoking this as the reason,” Walsh said. “That said, it is reasonable to believe the victims’ Black Lives Matter signs were likely a motive for the defendant going over there and pretending to be a police officer, and pointing a gun at their dog, based upon the posts displayed by the defendant on social media.”

During the preliminary hearing into the evidence against Bearry, held last week in Nevada County Superior Court, Judge Scott Thomsen shot down Walsh’s attempt to introduce the possibility of a political motive for the incident.

During that hearing, Julianne Henry testified that she went outside after she heard the dog barking and found a man dressed in “tactical gear” standing outside the gate, pointing a gun toward the dog and the house.

“I was terrified,” she said.

Bearry told her that if her dog kept killing livestock, he “would come back and take care of it,” she said.

Mark Henry testified that Bearry claimed to be law enforcement.

“He pulled a badge out and showed it to us,” Mark Henry said.

Walsh worked to introduce evidence that Bearry was reacting to the Henrys’ Black Lives Matter signs, arguing that it pointed to motive. Bearry’s attorney, Barry Zimmerman, objected, telling Thomsen that the issue was not in play and calling it highly prejudicial.

Thomsen agreed, sustaining Zimmerman’s objection.

On Thursday, Thomsen dealt a further blow to the case against Bearry, ruling he did not find enough evidence to hold the Chicago Park resident on the felony charge since an unrelated, decade-old conviction had been reduced to a misdemeanor. Thomsen also ruled there was not enough evidence for a charge of assault with a deadly weapon, a request Walsh had made the week before, because there was no evidence the gun was loaded.

The misdemeanor charges of brandishing a weapon and impersonating an officer remain, Walsh said after the hearing. A possible resolution is being discussed and Bearry — whose attorney said is planning a move to Idaho — is set to return to court on Feb. 4.

Contact reporter Liz Kellar at 530-477-4236 or by email at lizk@theunion.com.

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