Dec 3, 2015 4 min read

PITTSBURGH – The American Civil Liberties Union claims a Pennsylvania city is illegally retaliating against a man and his attorney who sued police for allegedly using excessive force.

The ACLU contends the city of Greensburg is violating the rights of Edward Wisneski and his attorney, Robert Owsiany, by suing them for court costs and unspecified damages stemming from Wisneski’s unsuccessful federal civil rights suit against the city.

Greensburg officials could have asked a federal judge to make Wisneski pay their legal fees after the judge threw out Wisneski’s lawsuit last year.

Instead, Greensburg is illegally trying to intimidate Wisneski and his attorney -and anybody else who might consider suing Greensburg’s police – by suing, ACLU attorney Sara Rose said.

But the ACLU suit, filed Wednesday in Pittsburgh’s federal court, seeks to go one step further.

“We are asking the court to rule that governmental entities like Greensburg are barred by the First Amendment from filing actions for damages” against plaintiffs who lose civil rights cases, Rose said.

St. Vincent College law professor and former federal prosecutor Bruce Antkowiak thinks that’s going too far.

“I don’t think any court would ever say there could never possibly be a case like this that’s justified,” he said.

But he agrees that allowing Greensburg’s lawsuit to go forward could set a dangerous precedent.

The city has a right to argue Wisneski’s lawsuit was frivolous and, therefore, illegal. But Antkowiak said civil rights lawsuits are especially important because police are rarely prosecuted criminally for rights violations, meaning lawsuits are the primary way that civil rights laws are enforced.

“There has to be some breathing space where people can file a lawsuit alleging a civil rights violation, where they do not have to fear being sued by anybody because they were wrong in their estimation,” Antkowiak said.

Wisneski, 45, has a history of at least four drunken-driving convictions including one in 1989, when he was 19 and still too young to drink in Pennsylvania.

His lawsuit, Greensburg’s and, now, the ACLU’s all stem from a traffic stop July 4, 2010.

Greensburg police said Wisneski was stopped again for driving drunk, then tried to drive away, even as an officer was reaching inside his car to keep Wisneski from turning the ignition.

One officer punched Wisneski in the head to try to keep him from driving away and police forcibly dragged Wisneski from the car after a 2½-mile chase, using a stun gun to subdue him.

Wisneski argued at his criminal trial he drove off because he feared police brutality, but a jury rejected that and he was eventually sentenced to 21 to 41 months in prison.

Wisneski sued in 2012, alleging police used excessive force, but a federal judge found part of the lawsuit illegal under a 1994 U.S. Supreme Court decision that bars people from suing over claims that have already been rejected in criminal court. The judge also said “no reasonable jury could conclude” that police acted unreasonably by using force to get Wisneski out of the car.

According to Greensburg’s lawsuit, filed last year, Wisneski and Owsiany should have known their lawsuit was doomed to fail. That’s why the city wants more than $51,000 in legal fees and other damages.

Greensburg’s attorney hasn’t returned messages for comment and Owsiany said the ACLU has instructed him not to speak.

Antkowiak said the ACLU’s suit raises a “classic situation” in which Wisneski and the city both have First Amendment rights to accuse one another of wrongdoing. But, in his opinion, the right to bring a civil rights lawsuit – even one that’s unsuccessful – should prevail.

“That’s why you have trials: Someone’s gonna win and someone’s gonna lose. But the price of losing cannot automatically be, ‘Hey, you filed this suit and you lost, so now we’re suing you,”‘ Antkowiak said.