                                                                               FILED
                                NOT FOR PUBLICATION                             OCT 25 2012

                                                                           MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



                                                          No. 11-35405

 SHERRIE CARLSON SANDAU,                                  D.C. No. 07-00632-MO

                  Plaintiff-Appellant,
                                                          MEMORANDUM *
      v.

 JOHN A. WOOD, CHRISTOPHER CASS,
 and THE CITY OF PORTLAND,

                  Defendants-Appellees.


                       Appeal from the United States District Court
                                for the District of Oregon
                       Michael W. Mosman, District Judge, Presiding

                           Argued and Submitted October 11, 2012
                                    Portland, Oregon

Before:          SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

           Appellant Sherrie Sandau appeals the district court's denial of her motions

for a directed verdict and judgment notwithstanding the verdict, and various other

rulings relating to the jury trial of her § 1983 claims surrounding the entry into her



  *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-

house and the manner of her arrest. We have jurisdiction pursuant to 28 U.S.C. §

1291, and we affirm.

      First, Sandau argues that the district court erred in denying her motions

under Rule 50 alleging that Officer Wood violated the Fourth Amendment by

entering her house without a warrant. We disagree. The district court correctly

ruled that a jury reasonably could have found that Officer Wood's actions fell

within the emergency exception to the warrant requirement. See Brigham City,

Utah v. Stuart, 547 U.S. 398, 403-406 (2006) (holding that police officers may

enter a home to prevent serious injury to persons or property).

      Second, Sandau argues that the district court erred in denying her motion for

judgment as a matter of law arguing that Officer Wood violated the Fourth

Amendment in the manner in which she was arrested. Again we disagree. The

district court correctly ruled there was sufficient evidence on which a jury could

have concluded that Wood acted reasonably under the circumstances. Sandau

argued that her rights were violated when she was taken to jail dressed only in a

thigh-length t-shirt and undershirt. However, the evidence supports a finding that

Sandau was behaving erratically and violently when the police encountered her,

and that it was necessary to get her into the police car as quickly as possible for the

safety of all concerned. The ride to the jail took only ten minutes, and she was
                                           -3-

furnished additional clothing shortly after her arrival. This situation is entirely

distinguishable from Franklin v. Foxworth, 31 F.3d 873 (9th Cir.1994), in which

the plaintiff inexplicably was made to sit on a couch for two hours with his genitals

exposed while a search of his home took place.

      Third, Sandau argued that the district court erred in denying her request to

let the jury decide whether a written police policy was unconstitutional. There was

no error. The question is a legal one for the court, not a jury, and was not raised

earlier by appropriate motion. Baltimore & Carolina Line v. Redman, 295 U.S.

654, 657 (1935) (“[I]ssues of law are to be resolved by the court and issues of fact

are to be determined by the jury” in a civil action).

      Fourth, the district court did not abuse its discretion in allowing Phil Zerzan

to testify as an expert on police procedure that embraced ultimate issues. Fed. R.

Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate

issue.”) Additionally, the district court did not abuse its discretion in finding

Zerzan qualified to express an expert opinion and that his testimony might be

helpful to the jury. See United States v. Freeman, 498 F.3d 893, 901 (9th Cir.

2007) (holding that there was no error in allowing a police officer with eleven

years experience to testify as an expert). Furthermore, the district court did not

improperly limit Sandau's cross examination of Zerzan.
                                          -4-

      Fifth, the district court did not abuse its discretion in precluding the

testimony of Bruce Billesbach and Doug Justus. Sandau explicitly stated that they

were not proffered as experts. The district court did not abuse its discretion in

ruling that their anecdotal lay experiences in other contexts were not relevant.

United States v. Skeet, 665 F.2d 983, 985-986 (9th Cir. 1982) (upholding a district

court's preclusion of lay witness testimony).

      Sixth, Sandau argued that the district court improperly excluded evidence of

Officer Wood's prior conviction for misconduct arising from an unrelated traffic

stop. There was no abuse of discretion. The convictions were not admissible

under Federal Rule of Evidence 609(a)(2). Moreover, the incident bore no

resemblance to this case. The district court properly weighed the probative and

prejudicial value of the evidence under Federal Rule of Evidence 403, and did not

abuse its discretion in finding the evidence more prejudicial than probative. United

States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992) (“We must affirm if the record,

as a whole, indicates that the court properly balanced the evidence.”); see also

United States v. Bagley, 772 F.2d 482, 488 (9th Cir. 1985) (concluding that a

district court's admission of a prior felony conviction was an abuse of discretion

where the conviction did not implicate the veracity of the defendant's testimony).
                                          -5-

      Finally, Sandau argues that the district court abused its discretion in not

providing more specific jury instructions regarding the reasonableness of the police

officers' actions. However, the instructions given were a correct statement of the

law and adequately apprised the jury of what it needed to decide. There was no

abuse of discretion. See Tritchler v. County of Lake, 358 F.3d 1150, 1154-55 (9th

Cir. 2004) (holding that there was no error in jury instructions telling the jury to

consider all the circumstances in an employment discrimination case).

      AFFIRMED.
