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Appeals court reinstates lawsuit

Kevin Murphy

For the Superior Telegram

MADISON — A federal appeals court this week restored a deer hunter’s unlawful arrest lawsuit against a Department of Natural Resources conservation warden stemming from a 2005 altercation outside a deer registration station near Brule.

The U.S. Seventh Circuit Court of Appeals overturned District Judge Barbara Crabb’s dismissal of the suit Mitchell J. Rooni of Iron River brought against Warden Bradley Biser. The Chicago-based court concluded a jury could find Biser lacked probable cause or “arguable” probable cause in Rooni’s arrest for disorderly conduct and obstruction of an office, based on Rooni’s allegations.

According to the appeals opinion issued Tuesday:

The arrest occurred Nov. 19, 2005, as Rooni, accompanied by son, Peter Rooni and friend, Brad Weerts, were registering two bucks and a doe at a DNR post temporarily operating at Brule gas station.

Two DNR employees congratulated Rooni on the hunt and tagged the deer. Rooni went inside the station to buy another hunting tag where he ignored Biser’s question about how many deer he downed.

Then, loud enough for everyone inside to hear, Biser said Rooni didn’t like the DNR. Rooni said something like, “no, just people like you.”

Rooni ignored Biser’s other comments and Biser went outside, hotdog in hand, and leaned against Weerts’ trailer as the deer aboard were being registered.

Rooni was trying to walk around Biser and avoid the slush on the ground when Biser stuck out his leg to block Rooni. Rooni stopped and when Biser said nothing Rooni said, “Brad, get off the trailer and let me get through.”

Rooni brushed past Biser, and Biser moved back and spit a piece of hotdog at Rooni, which Biser strongly disputes. Biser said Rooni pushed him, which Rooni disputes.

As the encounter escalated Biser grabbed Rooni, Rooni told Biser to take his hands off and pushed back at Biser. Biser grabbed Rooni and Rooni’s pushing continued. Biser then began hitting Rooni’s hands.

After Rooni told his son to call the police, Biser arrested Rooni and applied double-lock handcuffs on him that can’t be tightened or loosen.

Deputy Sherriff Alan Peterson arrived and replaced the handcuffs with shackles, then transported Rooni to the Douglas County Jail.

Charges against Rooni were dismissed.

Rooni, a welder and machine shop owner, said his hands and fingers were swollen for a few days after the arrest. A year later, he was diagnosed with carpal tunnel syndrome.

Rooni filed suit in Douglas County Circuit Court alleging Biser unlawfully arrested him and used excessive force in applying the handcuffs. The state moved the suit to federal court in Madison.

Crabb dismissed the suit finding Biser had qualified immunity against Rooni’s excessive force claim as Biser wasn’t alerted his actions violated Rooni’s constitutional rights.

The appeals court agreed with Crabb on that decision. However, it found that, according to Rooni’s account, his trying to brush past Biser or push away Biser’s grabbing hands, didn’t amount to disorderly conduct.

Also, a jury could interpret that Rooni’s pushing back at Biser as defending himself against 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,’” according to the 12-page opinion.

The court returned the case to Crabb for a jury to determine if Biser unlawfully arrested Rooni.

Rooni’s attorney, Daniel Snyder, had no comment on the decision.

Snyder defended Rooni when a jury acquitted him in a 2003 Bayfield County case for resisting a different conservation warden but found guilty of disorderly conduct.

A DNR spokesman did not know at deadline if Biser was disciplined regarding his actions involving Rooni.

Dana Brueck, a spokesperson for the Wisconsin attorney general’s office, said the decision was under review as how to proceed.