An 82-year-old doctor will be able to tell a jury he was arrested at a George W. Bush campaign event, a judge has ruled, rejecting defense claims that the mere mention of the president's name would be prejudicial.

Upper Darby Township, a Philadelphia suburb with a population of 84,000, is traditionally Republican. But its attorneys cited Bush's dismal approval ratings in filing an unusual evidentiary motion in the false arrest case of Dr. Harold Lischner.

“President Bush’s identity, in and of itself, presents the danger that the jury will favor Plaintiff,” says the motion “to preclude evidence identifying President George W. Bush as the political candidate” who spoke at a private residential community in September 2003.

Lischner, then 78, was one of about 50 people who were allowed into the Drexelbrook development to observe Bush's arrival for an invitation-only event. But an Upper Darby police officer arrested him for displaying a torso-sized sign reading,

Withdraw our troops from Iraq. Give the $87 billion to the Iraqi governing council and UN for immediate relief and repair of the destruction we caused.

Drexelbrook had instructed police that protesting and the displaying of signs were prohibited on its property. “[A]ny probative value of George W. Bush’s identity is substantially outweighed by the danger of unfair prejudice to Defendant,” the Upper Darby lawyers said, recommending Lischner testify only that “he displayed a sign in opposition of a 'presidential candidate.'”

The defense also moved separately to exclude testimony about the message on Lischner's sign. But in a July 12 order, U.S. District Judge Gene E.K. Pratter denied both motions.

“The identity of the political candidate speaking at Drexelbrook and the circumstances surrounding the visit (i.e., the commencement of the war in Iraq and a presidential campaign), as well as the relatively innocuous nature of the message on Dr. Lischner’s sign are relevant to the determination of probable cause,” she said.

Pratter had previously found the conditions imposed by Drexelbrook on protestors amounted to an “unlawful condition.” If the jury decides the officer arrested Lischner without probable cause, it could then find the township liable under either of two theories –- that Upper Darby had a policy of enforcing the “unlawful condition” or failed to adequately train its officers.

“There is no requirement that trials be made up of the blandest theories, facts and arguments available,” Pratter noted. “By the same token ... trials are not stages set for sensationalism, and the Court intends to guard against this trial becoming a platform for public polemics.”

Lischner, a former immunologist at a children's hospital and professor at Temple University's School of Medicine, filed his civil-rights suit in 2005 after being acquitted of a criminal charge of disorderly conduct. The case is set for trial July 23 and Lischner should be a highly sympathetic plaintiff.

By Matthew Heller
7/21/07