Zhivka Valiavicharska v. Brendan Tinney

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHIVKA VALIAVICHARSKA,
Plaintiff - Appellant,
v.
BRENDAN TINNEY,
Defendant - Appellee.
No. 12-15545
D.C. No. 3:10-cv-04847-JSC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Submitted March 11, 2014**
San Francisco, California
Before: WALLACE, McKEOWN, and GOULD, Circuit Judges.
Zhivka Valiavicharska brought this action under 42 U.S.C. § 1983 alleging,
among other things, that Officer Brendan Tinney used excessive force when he
struck her finger with a police baton during a protest on the University of
FILED
MAR 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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California, Berkeley campus. After a five-day trial, the jury rendered a verdict in
favor of Officer Tinney, and the district court entered judgment against
Valiavicharska.
Valiavicharska appeals the district court’s judgment, challenging the
magistrate judge’s 1 evidentiary rulings related to the testimony of Sergeant Donald
Jewell, a supervising officer present during the protest. Specifically,
Valiavicharska argues that the magistrate judge erroneously permitted Sergeant
Jewell to testify about the protest and then compounded that error by unfairly
curtailing her right to cross-examine him. We review these evidentiary challenges
for an abuse of discretion. E.g., Estate of Barabin v. AstenJohnson, Inc., 740 F.3d
457, 462 (9th Cir. 2014) (en banc).
The magistrate judge did not abuse her discretion by permitting Sergeant
Jewell to testify about the protest. Sergeant Jewell testified that he witnessed the
demonstrators’ hostile conduct toward the officers during the protest, that he
ordered Officer Tinney and other officers to take protective actions and to quell the
escalating conflict between the officers and demonstrators, and that he heard
Officer Tinney strike the barricade with his baton and warn the demonstrators not
1 On consent of the parties, Magistrate Judge Jacqueline Scott Corley
presided over the jury trial.
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to touch the barricade. This testimony was relevant to the jury’s determination of
whether Officer Tinney’s conduct was objectively reasonable under the totality of
the circumstances. See, e.g., Graham v. Connor, 490 U.S. 386, 396–97 (1989). In
addition, Sergeant Jewell’s testimony corroborated Officer Tinney’s account of the
events leading up to, and during, his interaction with Valiavicharska. Contrary to
Valiavicharska’s assertion, the unfair prejudicial effect, if any, of Sergeant Jewell’s
relevant testimony about the protest did not substantially outweigh its significant
probative value. 2 See United States v. Anderson, 741 F.3d 938, 950 (9th Cir.
2013). Permitting Sergeant Jewell to testify was well within the bounds of the
court’s discretion.
We are likewise unpersuaded by Valiavicharska’s related argument that the
court erroneously curtailed her cross-examination of Sergeant Jewell.
Valiavicharska’s counsel was allowed to ask Sergeant Jewell a broad range of
questions about the escalating conflict between the police and demonstrators
during the protest, and the court did not unfairly constrain the scope of cross-
2 Although the court initially entered a pre-trial order excluding testimony
“regarding clashes between police and protestors not observed by Officer Tinney
prior to” his use of force against Valiavicharska, the court later clarified that
Valiavicharska opened the door to Sergeant Jewell’s testimony regarding the
protest by introducing evidence during her case-in-chief about clashes between the
police and demonstrators. This ruling was not erroneous.
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examination. To the extent the magistrate judge limited Valiavicharska’s cross-
examination of Sergeant Jewell at all, she did so only to prevent unduly prejudicial,
cumulative, and otherwise irrelevant testimony. Imposing these reasonable
limitations was not an abuse of discretion. See Carriger v. Lewis, 971 F.2d 329,
332–33 (9th Cir. 1992) (en banc) (holding that trial court “retains wide latitude”
and “considerable discretion to limit cross-examination” (internal quotation marks
omitted)).3
AFFIRMED.
3 Because we conclude that the evidentiary rulings were not an abuse of
discretion, we need not reach Officer Tinney’s alternative argument that
Valiavicharska waived her challenge to Sergeant Jewell’s testimony.
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