Jury selection and opening arguments took up most of the first day in the civil suit brought by the Ostling family against the City of Bainbridge Island, Police Chief Jon Fehlman, and Bainbridge Island Police Officer Jeff Benkert. The suit alleges civil rights violations in the October 2010 death of Douglas Ostling, a mentally ill man who was shot by Benkert in his family home and then, as police prevented medics from attending him, bled to death. The trial is being held in Federal Court in Tacoma.
Absence of Chief Fehlman from Court
Attorneys for the Defense initiated proceedings by requesting a delay due to the hospitalization of Fehlman, one of the defendants in the case. Fehlman is suffering from pancreatitis and, according to the attorneys, is under heavy sedation. The Plaintiffs were quick to point out that William Ostling, Douglas’s father, who is suffering from cancer and undergoing chemotherapy, made special arrangements to have a chemotherapy pump implanted so that he could attend the trial.
But Judge Ronald B. Leighton was unmoved from a legal standpoint by either argument. He said the trial would go on as planned due to a very tight court schedule and that the arguments as to the failure of the BIPD to train officers adequately in dealing with the mentally ill would be segmented and pushed ahead until Fehlman might attend. Leighton said, “We don’t have the luxury of time in this case” and predicted the trial would last eleven days. He said, “Come hell or high water we’re going to get this case done by the 31st.”
A few hours later, an update provided by the attorneys for the City revealed that Fehlman’s condition had worsened, and he was now not expected in court at least until next week.
Request to Exclude Details About Ostling
Attorney Julie Kays representing the Plaintiffs requested that any mention of the Coroner’s finding that Douglas Ostling was intoxicated at the time of the incident be excluded from the trial. Her argument was that, since no officer had noticed Ostling’s state, his condition was irrelevant to the case. Judge Leighton cautioned that “Nobody can sanitize their clients.” However, he admonished the attorneys to treat the issue sensitively.
Kays then asked that any reference to Ostling’s alleged assault of his mother and his once expressed desire to kill his father also be excluded. Kays said about the Defense, “It is incredibly disingenuous for them to proffer this info.” when the officers didn’t bother to find it out.
Defense attorneys counterargued that the Plaintiffs would take the position that Ostling had only a benign illness. Including such information, they said, was key to showing that his condition was anything but benign.
Leighton instructed that the PowerPoint slide mentioning the inebriation be removed from the presentation by the Defense. But he allowed the issue to come up in cross examination.
The attorneys continued to argue. The Defense said that Joyce Ostling, Douglas’s mother, has admitted to incidents of her son’s violence and that the issue is relevant to damages. But the Plaintiffs argued that the relationship between mother and son was nevertheless a loving one.
Leighton said, “The role of lawyer is vital here.” He said to the attorneys that they were arguing to make their jobs easier later. But, he cautioned, “You’re going to be working your panties off.”
After the Ostling family and other observers were moved to the balcony, 38 jurors marched into the courtroom. In a lengthy process, each juror gave his or her name, area of residence, employer, number and employment of family members, special interests, and activities or hobbies. Leighton also asked each juror whether he or she wanted to serve.
Potential jurors had come to court from a wide variety of locations including Vancouver, Graham, Kelso, Longview, Olympia, Sumner, Port Townsend, Ocean Shores, Poulsbo, Allyn, Tacoma, Seabeck, Silverdale, Port Orchard, Battleground, Bremerton, Port Hadlock, Puyallup, Gig Harbor, and Bainbridge Island. They included a minister, retired legal secretary, housekeeper, gardener, textbook vendor, retired federal employee, wife of a retired colonel, wife of a Washington State Patrol officer, medical assistant, former chef, prison warden, USPS employee, man on disability, employee at the Naval Shipyard, former LAPD detective, and numerous teachers.
Although five people said they had heard of the case, no one claimed to be familiar with any of the parties involved or to know much about it. And when Leighton read the lengthy list of scheduled witnesses, only one potential juror knew of any of them, and she said she believed she could nevertheless be impartial. Still, that juror—a teacher and the wife of a WSP officer—was ultimately excused because of the potential bias she might have in favor of the police. The retired LAPD detective was also ultimately eliminated, as was a woman with a mentally ill nephew who said she thought she would have a hard time not assuming the police had mistreated Ostling. Also excused was a man who said that, maybe because he had attended school in Chicago in the 60s, he believes police abuse their power regularly.
Perhaps operating from some clairvoyance about the case, which had still not been fully described to the potential jurors, one man said that he questions whether police receive enough training and that a junior officer is not necessarily able to make good judgments on the fly. He was especially doubtful about such training happening in a small police department. Lack of proper police training for dealing with the mentally ill is one of the charges brought by the Plaintiffs.
Once the mental illness training issue had been brought up, jurors were eager to discuss it. The retired LAPD detective said he had received no such training and didn’t know anyone who had. The juror who was a police warden said that, during his own police training, he had not received any such training either.
After attorneys made their challenges for cause and their three allowed peremptory challenges, the 38 potential jurors were whittled down to 8, and the trial officially began.
During their opening arguments, the Plaintiffs and the Defense told very different stories about what happened on the night of October 26, 2010.
Plaintiff Version. Ostling calls 911 from his apartment above his parents’ garage on Springridge. Officers Dave Portrey and Jeff Benkert arrive and knock on the front door of the house. William Ostling, unaware of why his son might have called 911, accompanies the officers to the steps in the garage leading to the loft apartment. As they walk, William mentions that his son is mentally ill. William climbs the stairs, followed by Benkert, and knocks. Douglas doesn’t answer. William goes back downstairs to retrieve a spare key. Portrey, who is lower on the stairs, passes the key up to Benkert who inserts it in the door just as Douglas is saying that 911 is bugged and that he wants them to go away.
Benkert opens the door, looks in, and sees Douglas grab an ax from near the wood stove. Benkert yells to Portrey that Douglas has an ax. Both officers draw their guns. Benkert tells Portrey to use the taser instead. Portrey tries to shoot Douglas with the taser but it has no effect. Benkert says to stop or he’ll shoot, and then he shoots three times. The first shot misses. The second and third hit Douglas in the leg. All three shots go through the door that Douglas has either already closed or is closing. One of the wounds is a flesh wound. The other hits a superficial femoral vessel. Joyce Ostling emerges from the house and joins her husband at the bottom of the stairs. The smoke alarm goes off from the gun smoke. The Ostlings ask the officers to check on their son. They refuse. The Ostlings ask if they can check on Douglas. The officers say no. William sets up a ladder so that he can climb up to the roof and look through the skylights at his son. By now, additional officers have arrived and they prevent him from climbing up. They “corral” the Ostlings in a back bedroom.
The shooting happens at 8:59 p.m. An aid car arrives at just about 9:08. The police have it wait at the head of the driveway. The officers move the Ostlings out of the home and down the driveway. At 10:15, after SWAT teams arrive, an officer climbs the ladder and looks through the skylight, and he sees that Douglas is dead.
Defense Version. Douglas carries the ax up to his room earlier, before police arrive. He calls 911, yelling at the dispatchers. He is intoxicated. He is upset about something. His parents have tried to communicate with him to no avail. When police arrive, William takes them to the garage and knocks on the loft door, and yells at his son to open the door. He gets the key. Portrey tries to unlock the door just as Douglas opens it, wielding a large ax at shoulder height. Benkert is farther down the stairs. The officers issue at least a dozen commands for Douglas to drop the ax. Portrey shoots the taser at Douglas, who is clearly hit by it but struggles through its effects. He is yelling and screaming. Portrey backs up and falls down, landing on his back on the stairs. Douglas continues to advance. Benkert raises his weapon, still issuing warnings. He shoots three times.
Officers summon aid within one minute. Portrey climbs back up the stairs and tries to open the door. The officers call Cencom and ask the dispatcher to try reaching Douglas via phone. Then officers start the staging for a SWAT team. Concerned for the safety of aid workers and police and not knowing whether Douglas has a firearm, officers wait for the SWAT team to arrive. When it does, an officer climbs the ladder and sees Douglas through the skylight, dead.
The Police Manual
Attorneys from both sides referred to the Police Manual in their arguments. Nathan Roberts, attorney for the Ostlings, read the instructions for dealing with mental illness and said that neither Benkert nor Portrey had read that section and that, in fact, Benkert had no idea that any special skills were required in such interactions. The instructions are to do the following:
- Take your time.
- Avoid physical contact.
- Gather information about the person from family and friends.
- Take steps to calm the person.
- Communicate with the person.
- Contact outside professionals if needed.
- Don’t excite the person.
- Don’t make the person feel threatened.
Roberts pointed out how the two officers failed to follow any of the steps. He also read another section of the Manual that instructs officers after using deadly force to provide aid as soon as possible, and he argued that Douglas would be alive if the police had done what they were supposed to do.
The Defense, however, argued that the officers had indeed followed all of the steps. And they further argued that William had failed to give them adequate warning about Douglas.
Call for a Mistrial
Early in the opening arguments by the Plaintiffs, Defense attorney Stewart Estes rose to his feet and objected to Roberts’s description of Officer Benkert. In that description, Roberts mentioned that Benkert resigned from the LAPD in 2002 to avoid being fired. Estes said that they had agreed not to mention that part of Benkert’s history and that the Defense was therefore hamstrung and prohibited from addressing the reasons for the potential firing. He said this was the basis for a mistrial.
Judge Leighton called for the jurors to be removed from the courtroom. Then he said he would take five minutes to review the issue. When he returned to the courtroom, Leighton said that he would not grant a mistrial but, he said to Estes, “They put a no-win scenario in your can.” When the jury was brought back in, he instructed them to disregard the reasons Benkert left LA and ended up on the Bainbridge force. “It doesn’t exist. It’s not real,” he said to them.
Additional Arguments from the Plaintiffs
During opening arguments, Roberts also told the story of Joyce and William’s courtship, their early years with Douglas and their two other children, and Douglas’s gradually increasing troubles. He showed the jury photos of the family and of Douglas and described the Ostlings as a close-knit family and Douglas as athletic, intelligent, and caring of his sisters.
Additionally, Roberts said there were four differing versions of the incidents of that day in October. One version was what he described as the false one Chief Fehlman gave to the media and never corrected. Another was the one given by Portrey. Still another was Benkert’s version. And the fourth one he described was the version given by the evidence.
He also mentioned that Portrey didn’t meet with Fehlman and the City Manager until 48 hours after the incident, despite the fact that the Manual instructs it is to be within 24 hours. Benkert gave his testimony two and a half months after the incident.
And he added that in an interview in early January, Fehlman admitted that the police don’t train officers to deal with the mentally ill. He said he didn’t know what training they’d received. Roberts added that there had been no mental illness training since the incident either.
Additional Arguments from the Defense
After Roberts tried to head off potential arguments from the Defense about Douglas’s problems, Defense attorney Richard Jolly said in his opening arguments that the door had been opened for them to enter evidence of Ostling’s violence. Roberts countered that there was no witness to these accusations. Judge Leighton disagreed. He asked, “How can you blame the Defense for responding to what you’ve dared them to do?” But he cautioned that the rules of evidence would still apply.
Jolly said that they meant no disrespect to the Ostling family, but they were entitled to defend the lawsuit. He then proceeded to refer to the Ostling’s strategy of ignoring issues with Douglas that they couldn’t handle, a strategy that, he said, had failed. He said that William had admitted that they saw their son infrequently. He said that Douglas thought his father was having an affair with a Victoria’s Secret model, one whom Douglas fantasized was his own girlfriend, and Douglas wanted to kill his father for it. Jolly said Douglas had assaulted family members. Before October 2010, police had confiscated a loaded rifle from Douglas when Joyce had called them to report it. And Jolly said that, when he lived in LA Douglas had been found on Britney Spears’s front porch. He told the police who arrested him that he was trying to protect her.
Jolly said that the wood stove in Douglas’s apartment was dusty and infrequently used, making the argument that the ax Douglas wielded was not in his hands for wood cutting. He said that the BIPD always respond to 911 calls and make visual contact with the caller to ensure that everything is okay.
First Witness for the Plaintiffs
Right before the end of the day, the Plaintiffs called their first witness, David Bailey, a firefighter and paramedic with the Bainbridge Island Fire Department. Kays was questioning Bailey about where he was parked as he waited to be cleared to render aid to Douglas when Judge Leighton called it a day and said arguments would return at 9:30 Tuesday morning.
There were at least 20 people in attendance at the trial seated downstairs in the courtroom, including the Plaintiffs, William and Joyce Ostling. Their daughter Tamara, was not permitted in the courtroom as she is a witness.
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Photos by Sarah Lane.