Mitch Rooni v. Bradley Biser

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1511
MITCH R OONI,
Plaintiff‐Appellant,
v.
BRADLEY BISER ,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11‐cv‐827‐bbc — Barbara B. Crabb, Judge.
____________________
A RGUED SEPTEMBER 20, 2013 — D ECIDED FEBRUARY 4, 2014
____________________
Before WOOD, Chief Judge, and B AUER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. Deer hunting is serious business in
the state of Wisconsin. Although the hunters and the state
game wardens may coexist peacefully most of the time, in
this case they did not. A dispute erupted between Mitch
Rooni, a hunter, and Bradley Biser, a warden employed by
the Wisconsin Department of Natural Resources (DNR), and
it has now wended its way into federal court. According to

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2 No. 13‐1511
Rooni, on November 19, 2005, Biser arrested him without
probable cause and used excessive force against him both
before and after the arrest. Asserting that his civil rights had
been violated by these actions, Rooni brought suit under 42
U.S.C. § 1983 against Biser; Biser responded with a motion
for summary judgment in his favor on all counts. The district
court granted the motion with one exception, for the charge
that Rooni used excessive force before the arrest. The parties
then jointly filed a motion to dismiss the pre‐arrest exces‐
sive‐force claim with prejudice. The district court agreed to
do so and entered a final judgment in Biser’s favor.
Rooni contends on appeal that the district court erred by
granting summary judgment on the unlawful‐arrest claim
and the claim of excessive force after the arrest in connection
with his handcuffing. He also argues that the court was
mistaken to conclude that Biser was entitled in any event to
qualified immunity. We conclude that the district court
correctly granted summary judgment in Biser’s favor on the
handcuffing claim; at a minimum, Biser is entitled to
qualified immunity on this part of the case. Rooni’s arrest
claim, however, is another matter. Taking his reasonable
allegations as true, as we must, we conclude that neither
probable cause nor “arguable” probable cause supported
Rooni’s arrest. This means that a trier of fact could conclude
(if it accepted Rooni’s evidence) that Biser violated Rooni’s
clearly established constitutional rights in so arresting him.
We thus affirm in part and remand in part to the district
court for further proceedings on the wrongful‐arrest claim.

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No. 13‐1511 3
I
The account of the facts that follows accepts Rooni’s ver‐
sion for present purposes, without of course vouching for
anything. On November 19, 2005, Rooni, accompanied by his
son, Peter Rooni, and a friend, Brad Weerts, went deer hunt‐
ing in northern Wisconsin. Their trip was successful: they
left with two bucks and a doe loaded onto a trailer attached
to Weerts’s truck.
The trouble began when the group stopped to register
the deer at a DNR post located at a gas station in Brule,
Wisconsin. Christopher Sand and Kevin Feind, two DNR
employees, met and congratulated Rooni on his hunt; Sand
tagged and aged the deer. Rooni then went into the gas
station to buy another tag, which he needed so that the party
could continue hunting. While Rooni was there, Biser
arrived at the station, walked inside, and asked Rooni how
many deer he had downed. Rooni, evidently not a fan of
Biser or perhaps game wardens generally, did not respond.
Biser then proclaimed, loudly enough for everybody in the
station to hear, that Rooni did not like the DNR. Rooni
responded in kind, saying something like “no, just people
like you.” Biser made further comments but Rooni tried to
ignore them.
Biser eventually left the gas station, hotdog in hand, and
approached Sand, who was registering the deer in Weerts’s
trailer. Biser leaned up against the trailer while speaking to
Sand. Rooni then came out of the gas station and ap‐
proached Biser, who was still leaning against the trailer.
Rooni stood five or six feet away from Sand and waited, be‐
lieving that Biser was going to question him, but Biser did
not turn to look at Rooni or say anything. At that point,

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4 No. 13‐1511
Rooni attempted to walk around Biser. He had to pass very
closely, because there was slush on the ground with a few
trails beaten down by pedestrians. Biser was leaning right
next to one of those trails. As Rooni walked by, Biser extend‐
ed his leg to block Rooni’s way. Rooni stopped, took a few
steps closer, and looked at Biser, who remained silent. Rooni
then said, “Brad, get off the trailer and let me get through,”
and “brushed” between Biser and the trailer. As Rooni
brushed past Biser on the trail, Biser moved back and spit a
piece of hotdog at Rooni. (Biser strongly disputes this ac‐
count, but this is not the time and we are not the ones who
can say what “really” happened.) Biser accuses Rooni of
pushing him, but Rooni denies doing so.
As the back‐and‐forth escalated, Biser grabbed Rooni. Af‐
ter telling Biser to get his hands off of him, Rooni pushed
down, with his palms facing himself, in an attempt to detach
Biser’s hands from his person. In response, Biser put his
hands back on Rooni and grabbed Rooni’s stomach through
his shirt. Rooni again attempted to push Biser’s hands away.
Biser pushed Rooni against the trailer and started hitting his
hands and arms. As he was hitting Rooni, Biser repeatedly
told Rooni not to grab him, though it was Biser who had
been hitting Rooni. At this point, Rooni’s son came over, and
Rooni told him to call the police. In response, Biser told
Rooni he was under arrest. While in the process of handcuff‐
ing Rooni, Biser grabbed Rooni by the back of the neck and
jerked him back, almost pulling Rooni over. Biser then hand‐
cuffed Rooni with double‐locked handcuffs (a type that can‐
not be tightened or loosened). Biser moved Rooni to his
truck, at which point Rooni complained that the handcuffs
were too tight. Biser responded by telling him to “shut up.”
Soon Deputy Sheriff Alan Peterson arrived, and Rooni again

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No. 13‐1511 5
said that the handcuffs were on too tight and hurt; he added
that Biser had purposefully twisted the handcuffs so that
they would hurt him. Although Peterson did not believe that
the handcuffs were too tight, he offered to place Rooni in
shackles so that he could be handcuffed in the front instead
of from behind. Rooni agreed, and when Peterson changed
the handcuffs, Rooni pointed out the red marks on his
wrists. Peterson transported Rooni to the Douglas County
jail, telling him that he had been arrested for disorderly con‐
duct and obstructing an officer. While in the jail, Rooni did
not seek medical attention. He did, however, observe blood
and blister‐type discoloration under his skin, his hands were
numb and painful, and his fingers were swollen for a few
days.
Rooni was charged with disorderly conduct, but the
charges were dismissed. In April 2006, Rooni was diagnosed
with carpal tunnel syndrome.
II
Because this case reaches us from a grant of summary
judgment, we review the district court’s decision de novo, tak‐
ing all facts and reasonable inferences in favor of the non‐
moving party. Marion v. City of Corydon, Ind., 559 F.3d 700,
704 (7th Cir. 2009). As the party with the burden of proof,
Rooni had to present evidence that, if believed by the trier of
fact, would support a finding that his constitutional rights
were violated. See Sow v. Fortville Police Depʹt, 636 F.3d 293,
300 (7th Cir. 2011) (citing McAllister v. Price, 615 F.3d 877, 881
(7th Cir. 2010)). One acceptable type of evidence is the plain‐
tiff’s own affidavit, as long as it otherwise contains infor‐
mation that would be admissible if he were testifying direct‐
ly. There is nothing suspect about the fact that such affidavits

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6 No. 13‐1511
are normally “self‐serving.” See Hill v. Tangherlini, 724 F.3d
965, 967 & n.1 (7th Cir. 2013); Payne v. Pauley, 337 F.3d 767,
773 (7th Cir. 2003).
A. Unlawful Arrest Claim
Probable cause is an absolute defense to a claim of
wrongful arrest under section 1983. Chelios v. Heavener, 520
F.3d 678, 685 (7th Cir. 2008). A police officer has probable
cause to arrest if, at the time of the arrest, the facts and cir‐
cumstances within the officer’s knowledge are sufficient to
permit a prudent person to believe that the suspect had
committed, is committing, or is about to commit an offense.
See id. at 686; Wagner v. Washington County, 493 F.3d 833, 836
(7th Cir. 2007) (per curiam) (citing Michigan v. DeFillippo, 443
U.S. 31, 37 (1979)). “The probable cause determination must
be made by a jury ‘if there is room for a difference of opinion
concerning the facts or the reasonable inferences to be drawn
from them.’” Chelios, 520 F.3d at 686 (citing Maxwell v. City of
Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993).
Because the district court jumped directly to the qualified
immunity inquiry, it assumed (as it was permitted to do un‐
der Pearson v. Callahan, 555 U.S. 223, 236 (2009)) that Rooni’s
actions did not give Biser probable cause to arrest him for
disorderly conduct. We find it useful, however, to take a
closer look at that question as we move through the immuni‐
ty inquiry.
The district court found that even though it was
“undisputed that plaintiff gave defendant a sudden verbal
command ‘in a loud voice,’” probable cause for the arrest
would clearly have been lacking if Rooni had done no more
than shout at Biser. But, the district court thought, there was

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No. 13‐1511 7
more: after the shout Rooni “brushed” against Biser. Yet the
court acknowledged that it “might be obvious that
disorderly conduct requires more than accidental physical
contact with an officer.” Here, as the district court saw it, the
combination of the accidental physical contact and the
confrontational and loud statements made it “more
reasonable” to interpret plaintiff’s actions as threatening and
disruptive. Coupled with Rooni’s act of pushing Biser’s
hands away from him, the court thought that this amounted
to at least arguable probable cause for the arrest. In order to
evaluate this conclusion, we take a closer look at each of
these ingredients and then at the way they blended together.
1. Rooni’s Verbal Comment
There is a fundamental problem with the district court’s
reliance on Rooni’s alleged sudden and loud statement:
Rooni denies that he yelled or spoke in a confrontational
way, and a trier of fact would be entitled to believe Rooni’s
account. “We have warned before of falling for the trap of
weighing conflicting evidence during a summary judgment
proceeding.” Payne, 337 F.3d at 771. Rooni’s proposed find‐
ing of fact described the encounter this way: “When defend‐
ant Biser said nothing to Mitch Rooni, Mitch Rooni said to
defendant Biser: ‘Brad, get off the trailer and let me get
through.’” Plaintiff’s Proposed Finding of Fact at ¶ 22, Rooni
v. Biser, No. 11‐cv‐827‐bbc (W.D. Wis. October 15, 2012). The
word “said” gives no information about tone of voice or dec‐
ibel level. If, as Rooni contends, his comment was not deliv‐
ered in a confrontational way, then nothing about the com‐
ment would support a finding of probable cause to arrest.

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8 No. 13‐1511
2. Brushing
While both sides report that there was physical contact
between Rooni and Biser as Rooni attempted to pass Biser
using the trail through the slush, Biser says that it was signif‐
icant and Rooni depicts it as glancing. An unintentional
touching alone does not give rise to probable cause for a dis‐
orderly conduct arrest. Wisconsin’s disorderly conduct stat‐
ute provides that “whoever, in a public or private place, en‐
gages in violent, abusive, indecent, profane, boisterous, un‐
reasonably loud or otherwise disorderly conduct under cir‐
cumstances in which the conduct tends to cause or provoke
a disturbance is guilty of a Class B misdemeanor.” Wis. Stat.
§ 947.01. The Supreme Court of Wisconsin has noted that the
statute contains two elements: “(1) conduct of the type enu‐
merated in the statute or similar thereto, and (2) the conduct
must be engaged in under circumstances which tended to
cause or provoke a disturbance.” In re A.S., 626 N.W.2d 712,
716 (Wis. 2001). Simply brushing by another person – an act
which we understand as involving only de minimis contact –
cannot be characterized as the type of conduct described in
Wisconsin’s statute. A similar analysis applies to the charge
of obstructing an officer in violation of Wis. Stat. § 946.41,
which broadly prohibits “knowingly resist[ing] or ob‐
struct[ing] an officer while such officer is doing any act in an
official capacity and with lawful authority.” Id. § 946.41(1).
The obstruction must, at a minimum, be “knowing,” and
there is nothing in the accidental brush that Rooni describes
that could meet this criterion. Cf. State v. Ferguson, 767
N.W.2d 187, 199 (Wis. 2009) (describing conduct covered by
the statute); see also Gonzalez v. City of Elgin, 578 F.3d 526,
538 (7th Cir. 2009) (Illinois law). That is enough to defeat

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No. 13‐1511 9
summary judgment on Rooni’s arrest claim, since we must
take the facts in the light most favorable to him.
3. Attempting to Remove Biser’s Hands
The district court also thought it significant that Rooni
tried to free himself from Biser by pushing Biser away. But
here again, the overall picture shifts, depending on whose
version of the facts is credited. Rooni alleged that Biser first
spit a piece of hotdog directly at him and then proceeded to
grab and hit him. Rooni tried to push Biser away after Biser
grabbed him. At that point, Rooni told his son to call the po‐
lice, and Biser announced that Rooni was under arrest. If a
jury believes Rooni’s account, then it would find that all
Rooni tried to do was to disengage from Biser’s assault. As
we have noted in the past, “police officers do not have the
right to shove, push, or otherwise assault innocent citizens
without any provocation whatsoever.” Payne, 337 F.3d at 780
(quoting Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996)).
Since we have concluded that neither the alleged verbal
comment, nor the brush‐by, nor the effort to disengage from
Biser’s grasp was sufficient to support probable cause for
Rooni’s arrest – as always, taking the facts in the light most
favorable to Rooni – we also find that taken together these
three elements are not enough to support summary judg‐
ment in Biser’s favor on the claim of unlawful arrest.
4. Qualified Immunity
This leaves the question whether Biser is entitled to qual‐
ified immunity on this part of the case. “To determine
whether a defendant is entitled to qualified immunity, courts
must address two issues: (1) whether the defendant violated
the plaintiffʹs constitutional rights and (2) whether the right

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10 No. 13‐1511
at issue was clearly established at the time of the viola‐
tion.”Stainback v. Dixon, 569 F.3d 767, 770 (7th Cir. 2009) (cit‐
ing Phelan v. Vill. of Lyons, 521 F.3d 484, 487 (7th Cir. 2008)).
When the facts of this case are taken in the light most favor‐
able to him, Rooni has shown that Biser violated his consti‐
tutional rights by arresting him without probable cause.
Moreover, under his version of the facts, Rooni never raised
his voice and was merely attempting to pass Biser on the
trail surrounded by slush when Biser spit hotdog on him
and then grabbed and began hitting his upper body. Before
Biser ever told Rooni he was under arrest, Rooni attempted
to defend himself against this battery by trying to push his
hands down his own body, in the hopes of removing Biser’s
hands. As Rooni describes it, he never conducted himself in
a disorderly manner. Under these circumstances, Biser
should have been on notice that Rooni had a right to be free
from arrest. See, e.g., Pourghoraishi v. Flying J, Inc., 449 F.3d
751, 762 (7th Cir. 2006) (an officer did not have probable
cause to arrest where the individual “did not raise his voice,
use profanity, make unreasonable noise, or otherwise engage
in any behaviors prohibited by the disorderly conduct stat‐
ute”). We conclude that Biser is not entitled to qualified im‐
munity on this claim.
B. Handcuffing
1. Excessive Force
Rooni also alleges that his constitutional rights were vio‐
lated because Biser used excessive force when he handcuffed
Rooni. A person has the right to be free from an officer’s
knowing use of handcuffs in a way that would inflict unnec‐
essary pain or injury, if that person presents little or no risk
of flight or threat of injury. See Payne, 337 F.3d at 778, Stain‐

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No. 13‐1511 11
back, 569 F.3d at 772. The question, however, is whether the
officer knows that he is inflicting such pain. An officer can‐
not be expected to respond to an injury about which he is
unaware. Nonetheless, knowledge may be inferred “from
the nature of the act itself.” Stainback, 569 F.3d at 772.
We have seen a number of cases in which arrestees have
made similar complaints about handcuffing. See, e.g., Sow v.
Fortville Police Dept., 636 F.3d 293 (7th Cir. 2011) (dismissed
where plaintiff complained once but presented no evidence
that he elaborated on the pain to the defendant); Tibbs v. City
of Chicago, 469 F.3d 661 (7th Cir. 2006) (dismissed excessive
force claim where plaintiff complained the handcuffs were
on too tight but did not indicate the degree of pain). Giving
Rooni the benefit of the doubt, it is possible (though we do
not hold this definitively) that the Fourth Amendment re‐
quired Biser to take Rooni’s complaints more seriously.
2. Qualified Immunity
Once again, this brings us to the question of qualified
immunity, and in particular, to the issue whether Rooni’s
right to be free of the degree of force Biser used after the
handcuffs were applied was clearly established. Qualified
immunity gives government officials “the benefit of legal
doubts.” Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991).
Our decisions in Tibbs and Sow, supra, both found in the of‐
ficer’s favor on similar allegations. It is difficult in borderline
cases to say that a right to be free from a particular degree of
force was “clearly established.” Here, we conclude that there
was nothing that would have alerted Biser to the fact that a
constitutional violation was looming. We therefore conclude
that Biser was entitled to qualified immunity on Rooni’s
complaint of excessive force in connection with the hand‐

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12 No. 13‐1511
cuffing, and thus that summary judgment in Biser’s favor
was proper on this part of the case.
III
In closing, we cannot resist commenting that it strikes us
as unfortunate that the kind of dust‐up that gave rise to this
case can wind up in federal court. Nevertheless, as the Su‐
preme Court reminds us, we have an “unflagging duty” to
hear cases that fall within our jurisdiction, and the broad
principles that underlie the right of citizens to be free from
unlawful arrests and the use of excessive force by public of‐
ficers are far from trivial. We thus A FFIRM the judgment of
the district court on the handcuffing and R EVERSE and
R EMAND the unlawful‐arrest decision for further proceed‐
ings consistent with this opinion.

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