Tag Archive | "Douglas Ostling"

Jon Fehlman

Bainbridge Police Guild Requests Removal of Chief Fehlman with No Confidence Vote

Yesterday, the Bainbridge Island Police Guild gave a no confidence vote in the leadership of Chief Jon Fehlman with a majority described by the Guild as “overwhelming.” The Guild described the vote as a reflection of the common view among officers that Fehlman “has not been a capable or efficient steward of the Bainbridge Island Police Department.”

This news comes after a couple of difficult weeks for Fehlman. The jury verdict in the civil suit by the Ostling family against the City of Bainbridge Island exonerated Officer Jeff Benkert in the wrongful shooting of Douglas Ostling but found Fehlman culpable of a failure to train BIPD officers and awarded the family $1 million. Fehlman missed the opportunity to testify at the trial due to a life-threatening bout of pancreatitis for which he was hospitalized. He continues to be absent from the police station due to health problems.

On its website, the Guild gives an emotional and critical summary of the no confidence vote, saying that the “vote was not taken lightly or for cavalier reasons. Many guild members have worked their entire law enforcement careers with the Bainbridge Island Police Department and have [a] tremendous body of work that they have accomplished; including deep roots and relationships in the community, a vast knowledge of the organizational and community culture, as well as the toil, sweat, and blood that have built the department up from where it began in 1991. All of these efforts have been eroded in three short years by the actions of Chief Fehlman.”

The criticisms were not leveled only at Fehlman. The website refers to the “ignorance, arrogance, or political expediency on the part of those who run the department and the city.” Members of the Guild delivered a letter to Mayor Debbi Lester requesting a change in leadership. The Guild said, “It is hoped that this action sends a message to the elected leaders of the city that the time has come to have the police department move in a new direction.”

I was able to reach Commander and Acting Police Chief Sue Shultz, who as the BIPD Commander cannot be a member of the Guild, about her reaction to the vote. She asked that all questions about the matter be directed to Acting City Manager Morgan Smith. But she did say, “This dept has a group of really talented and involved people—officers and staff—and I’m aware of how difficult of a time we’ve had. I’m looking to the department moving forward and getting through this.”

Read IB’s interview with Chief Fehlman.

Photo by Sarah Lane.

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Federal Courthouse in Tacoma

Jury Returns Mixed Verdict in Ostling Case, Awards $1M in Damages

by Sarah Lane and Julie Hall June 1, 2012, 2:10 p.m.

In a mixed verdict the 8-person jury in the civil lawsuit by Bainbridge Island’s Ostling family against the City of Bainbridge Island, Officer Jeff Benkert, and Police Chief Jon Fehlman has awarded the Ostling family and estate a total of $1 million. The jury determined that Officer Benkert acted reasonably in the shooting of William and Joyce Ostling’s adult son, Douglas, who was mentally ill, but that the City and the Police Chief are liable for a failure to train officers adequately in dealing with mentally ill people.

The verdict came in this afternoon. The jury deliberations began Wednesday afternoon after closing statements. The jury awarded $200,000 to Douglas Ostling’s estate and $400,000 each to William and Joyce Ostling.

The plaintiffs failed to convince the jury that the police used excessive force, that they neglected to offer aid in a reasonable amount of time to Douglas after he’d been shot, and that they violated Douglas’s civil rights. Nevertheless, the jury determined that BIPD officers had not received sufficient training in handling situations involving the mentally ill, and they based their monetary award on this one plaintiff claim.

Read our previous articles about this case:

Ostlings’ Attorney Apologizes for Missteps, Asks for $3-5M in Damages from the City of Bainbridge Island

William Ostling Testifies About the Night a Bainbridge Police Officer Killed His Son

Family Portraits Emerge in Ostling v. Bainbridge: A Disturbed Son, a Detached Father

Bainbridge Police Chief Fehlman Too Ill to Testify at Ostling Trial

Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit

Ostling v. City of Bainbridge: The Trial Begins

City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

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William Ostling Testifies About the Night a Bainbridge Police Officer Killed His Son

William Ostling’s 43-year-old son Douglas Ostling was fatally shot by Bainbridge Island Police Officer Jeff Benkert on the night of October 26, 2010. What the eight-person jury in the Tacoma Federal Courthouse is trying to determine is whether, as the Ostlings contest, civil rights violations occurred that night.

Here are the four claims the Ostlings made that were accepted by Judge Ronald B. Leighton for trial by jury:

  1. Bainbridge Island Police Officer Benkert used excessive force against Douglas Ostling after Douglas summoned police to his home with a 911 call;
  2. Bainbridge Island Police failed to secure medical care for Douglas after he had been shot, eventually resulting in his bleeding to death;
  3. The Bainbridge Island Police Department failed to adequately train its officers in dealing with mentally ill citizens; and
  4. The City of Bainbridge Island deprived Joyce and William Ostling of the companionship of their son.

William Ostling’s Interview

With his lawyer Nathan Roberts questioning him, William Ostling described the events the night Douglas was fatally shot.

Ostling: “Kim [Ostling's disabled daughter] had a dental appointment the next day, and Tami was just moving back home, so all the family was at home. Two officers were at the door, introduced themselves, and said they were responding to a 911 call. I said that we hadn’t made a 911 call, and they said someone had from our house. I said it might have been my son. As I walked toward the staircase to go to Doug’s room, I said my son is mentally ill.”

Roberts: “What did they say?”

Ostling: “They didn’t say anything. I headed out the door [into the garage where the staircase to Douglas's room is]. Officer Benkert followed me. Portrey was standing at the end of the table at the bottom of the stairway. He could see the base of the staircase from this position. I think my wife was talking with Officer Benkert. I walked up the stairs; Officer Benkert was right behind me.

[Note: The featured image shows the staircase from a view as if there is no wall on the right side of the steps heading up, but there is. In fact, Ostling explained that he built the staircase very narrow—only 20 inches wide. A view from below of the door is not possible because of the sharp turn at the top landing.]

“In our house no one wears shoes; the sound of [the officers'] boots were magnified on the stairs—no, no, no, that sound is not good. I was standing on either the first or second step. Benkert was standing on the landing behind me. I knocked on the door and said the Bainbridge Island police are checking on a 911 call. I raised my voice, knocked a little harder. The reason I did that is that Doug wears headphones and watches movies up there. I thought that was the case, actually, at the time. I called louder and louder.”

Roberts: “Were you a tiny bit concerned for Doug’s welfare?”

Ostling: “Fifteen minutes before this had happened he had walked through the living room at around 8:30. He had walked up to his room with a huge load of clean clothes. I knew he was okay. We did hear him hollering. It wasn’t unusual. It usually just stopped, and it did, and we thought everything was fine.

“Then Officer Benkert asked to knock on the door. We had to work our way past each other in such a small space. You’re talking about maybe a foot at best because of a skateboard and other things in a shoe rack that Doug chose to have there. I stood down on the stairway. I believe Officer Benkert was standing on the step when he knocked on the door. No one answered. Officer Benkert asked if I had a key to Douglas’s room. There was a large keyring with a key. Doug put it there because he had locked himself out once or twice, so it was an extra key.

“When I built the door [to Douglas's room] I built it too narrow, so the internal mechanism of the lock is exposed. You can push it with your finger to unlock the door. Doug didn’t know about it—he would have put in a new door with a lock if he had known.”

Roberts: “Then why did you go get the key?”

Ostling: “I forgot about it. Officer Benkert grabbed the keyring. He started putting the keys into the lock. The first one didn’t fit. He got one key in the door and tried it, but there was obvious resistance to that door. I was on the second or third step. I was between the two officers. Portrey was at the base of the stairs. Officer Portrey told me to get down.”

Roberts: “Where was Officer Benkert standing when he was keying the door?”

Ostling: “I believe he was still standing on the top step or landing. I moved off the stairs a foot or two feet away, and Portrey went up a few stairs. I could see the two officers, and I could see their two hands. I could not see the door. I saw Benkert reach his hand into where the door should have been.”

Roberts: “What did you think had happened based on what you saw?”

Ostling: “There should have been a door there. If you see an arm go forward, there has to be an open hole there. Just prior to this, Doug made some sounds. I was still standing on the stairs when Doug said, ’911 is bugged.’ I was concerned, but now I’m not scared because I know he’s okay. You could hear his voice quite distinctly through the door. As I was moving down the stairway, Doug hollered—it was his typical holler. You can’t hear him walk across the room because his shoes were off. He said go away and leave me alone—it sounded like he was farther into the room.”

Roberts: “Were the officers talking to Doug at that point?”

Ostling: “They knocked on the door and said they were responding to a 911 call. There was a moment—not more than several seconds. Benkert was squatting down the stairs looking into the room. That’s when he saw Doug—that’s an assumption on my part—there was a lot of shuffling, arm movement, and then all of a sudden Officer Benkert said, ‘Taser.’ There was a lot of movement by the other officer, and then I heard a muffled sound. And then I heard ‘Double-bladed ax’ and ‘Stop or I’ll shoot.’ Between the taser and the shots was 5-8 seconds. At ‘Double-bladed ax,’ right then, Officer Portrey took a step back and missed a step, and for an instant I thought he was going to fall into me. He caught himself.

“I could hear radio traffic. I heard the pops, blue smoke from the gun. As the gun was being pulled back it broke the banister. At that point my wife was standing right next to me. It was so instantaneous. There was some wires hanging across my pickup that weren’t supposed to be there. Since I’ve seen the pictures, I realize that they were taser wires.”

Roberts: “Will you tell the jury about the ax?”

Ostling: “I purchased that ax for my son at a garage sale when he was in high school or junior high. He would help me cut wood. He had a tendency to break my axes. This is what he used. That day of the incident I had gotten wood at the house and he had been outside splitting wood, but he was not using his ax.”

Roberts: “But it wasn’t outside with the other axes.”

Ostling: “Knowing Doug, he was very possessive of his things and security conscious and he had his ax somewhere else. The police asked if Doug had any guns in the room, and I said no.”

Roberts: “If you had been asked about other weapons, what would you have said?”

Ostling: “I’m not sure I would have said yes because an ax is like a tool to me.”

[It should be noted that the ax in question is an unusually large one, with a long long handle and two blades.]

Ostling: “Office Benkert and Portrey descended the stairs. We started asking if we could go check on our son. They said, ‘It is not safe for you.’ The fire alarm was going off because of the smoke [from the gun]. I went through the backdoor. I fished out the forty-foot ladder and ran it up to the front of the house—a 200-250 foot distance to run. As I got up there, other officers started to arrive. I started to put up the ladder. An officer told me, ‘You can’t do that; it’s too slick up there.’ I said, ‘No it isn’t, I built that roof.’

“I asked one more time if I could go check on him, and they told me to go back in the house with the rest of the family. The time was 4-5 minutes getting the ladder and then going back in. We were in the family room, but then another officer said you have to leave this area, and we went upstairs to an office area. Kim was in the bath; Joyce went in to get Kim dressed.

“I heard my daughter, Tami, asking if an aid car was there, and the officers said an aid car was on its way. Another officer asked me to draw an outline of Doug’s room, including where the skylights were. Officers were running all around the room. One officer was trying to access Doug’s room.”

Roberts: “How were you feeling at this time?”

Ostling: “I went into shock. My hands went clammy. You go into a state of denial. It was a very trying time. I think I was starting to get angrier by the moment. It comes down to the point that you get a 911 call and within 5 minutes they come in and shoot your son.”

Roberts: “Eventually were you and your family forced to leave the house?”

Ostling: “I think we were in the house for almost an hour. Outside that door of course there was an officer guarding the house. Then we were told that we had to leave without being told where we were going. I thought we were going to get our car. My daughter has had a stroke, she wears a brace on her leg. They did say they were going to take us out to an officer’s car. It was 500 feet away. She was wearing slippers with her leg [in a brace]. We ended up walking almost to our neighbors’ driveway. There wasn’t enough room, so I stayed out of the car. They put Kim in the front seat—she can’t talk.

“The whole hill was filled with police cars. One officer said there were 35 police cars. There was an ambulance in the driveway sitting idling. We sat for some time. Not one officer of the law came to us. There has been no communication with Bainbridge Island police since that occurred except when they came and did their investigation.”

Roberts: “You heard Benkert testify yesterday. Are you sure it wasn’t Benkert who fell?”

Ostling: “Absolutely sure. Portrey fell back and caught himself.”

Roberts: “If Officer Benkert or Portrey had asked you at any point, ‘What’s the best way to deal with your son?’ what would you have said?”

Ostling: “I would have said, ‘Let’s go away and leave him alone a bit. Just wait.’”

Roberts: “Do you think you could have gotten Doug to come down?”

Ostling “If we could have gotten the officers to leave the living room.”

Roberts: “Were there any other people in his [Doug's] room?”

Ostling: “No.”

Roberts: “How did you know that?”

Ostling: “There were large computer boxes and not enough room for anyone else there in that small space. He had never had any visitors in there.”

Roberts: “Was there an emergency behind Doug’s door?”

Ostling: “I knew when he said just go away that he was okay. He had been hollering but he was okay.”

At this point, Ostling’s lawyer played Bainbridge Island Police Chief Fehlman’s account of the events he gave in a public statement the day after the shooting. The statement contained numerous inaccuracies, including that Douglas was seen in the Ostling’s driveway and that he had gone to get an ax after being tased. The Oslting’s attorney Roberts pointed out that no one had taken a statement from William before Fehlman made his press conference report.”

Roberts: “Did Doug come at the officers several times?”

Ostling: “No.”

Roberts: “Did you have a clear view of the officers the whole time?”

Ostling: “Yes.”

Roberts: “When you watched Fehlman’s conference, how did you feel?”

Ostling: “I was in total disbelief. How could he tell that story? He was there within 30 minutes of the event.”

Ostling explained that two detectives interviewed his family the next day at their house with his preacher and two friends present. The official report of the events of that night was released weeks later.

Ostling said, “I couldn’t believe how an officer could say that. It made me mad actually, how an officer could say that, how they could say things like that that I stood and watched happen.”

Cross Examination

William Ostling testifying.

William Ostling testifying.

Following the plaintiff interview, here are the exchanges between defense attorney Stewart Estes and William Ostling about the events of that night.

Estes: “You didn’t know he [Douglas] was okay since you didn’t check. You just made that assumption, correct?”

Ostling: “I made that assumption; that is correct.”

Estes: “This night you began to feel concerned about whether he was okay.”

Ostling: “The police being there made me concerned.”

Estes: “Douglas was an adult male holding a double-sided ax.”

William: “I don’t know that he was holding the ax. The only picture I’ve seen is the ax lying on the floor.”

Estes: “You know that the officers warned him to drop the ax. Would you consider ‘Stop or I’ll shoot’ a warning?”

Ostling: “Yes.”

Referring to William Ostling’s deposition taken on December 20, 2011, Estes said, “Some events seem to be unclear to you. Would you say that this [pointing to Officer Benkert] is the younger officer?” (No response.)

Estes: “Is it fair that you referred in your deposition to the officers as the ‘older officer’ and the ‘younger officer’ because you didn’t remember their names?” (No response.)

Estes: “You said that the older one was the slightly heavier one?” (No response)

Estes: “Were you able to distinguish them by name? One was younger looking and one was older looking—one was slightly heavier.”

Ostling: “The person who shot through the door was at the top of the stairs. . . . When the officers arrived saying they were responding to a 911 call, I said, ‘We have a son who lives above the garage who might have called 911 and I’ll go check on him.’ My first reaction was that he was okay [because he] had just walked through the room with his clothes.”

Estes: “Do you believe that one of them stopped in the family room and one followed you up the stairs? Did they mention Doug’s name at the door?”

Ostling: “No. They mentioned that there was a 911 call from this home.” [Douglas had his own phone line listed under his name, although it was from a room in the Ostling home.]

Estes: “You didn’t think to mention to the police that he had been yelling and slamming doors?”

Ostling: “I did not associate earlier occurrences to that moment.”

Estes: “You didn’t give them any reason that you had your radar up?”

Ostling: “They raised my radar.”

Estes: “You didn’t say wait here?”

Ostling: “No.”

Estes: “Doug had been splitting wood that evening. Why would he not have left the ax down with the woodpile? Why would he take a big double-bladed ax up to that small room?”

Ostling: “To cut kindling. I do it all the time.”

At this point Estes showed the jury a photo of Doug’s room with heavy dust covering his wood stove, taken at the scene of the shooting, indicating it hadn’t been used for quite some time. Estes said, “Doug wasn’t using his stove.”

Ostling: “Yes, he hadn’t been using the stove, but I had encouraged him to.”

Recounting the officers’ actions, Ostling said, “The younger officer followed me up the stairs.”

Estes: “You knocked on Doug’s door three or four times.”

Ostling: “I knocked louder each time.”

Estes: “I know that Benkert heard you yelling, with no sound coming from Doug’s room. That’s the point in time that his safety crossed your mind?”

Ostling: “Yes.”

Estes: “You were downstairs when the officer reached his hand forward. You say Benkert extended his arm and assumed that he opened the door.”

Ostling: “That’s correct.”

It is not in dispute that one of the officers shot a taser gun at Ostling. The officers reported that it did not have the intended effect on Douglas, who regained his footing within seconds. At this point Estes asked that the defense team play the emergency traffic call issued by the officers at the scene.

Estes: “You heard the emergency traffic call. Do you agree that that is one of the officers screaming at your son to drop the ax?”

Ostling: “No. I don’t understand the words being spoken in that recording. It was 5 to 8 seconds between when they shot the taser and fired the gun.”

The defense played the recording again, this time for longer. No shots were audible on the recording after the sound of the taser, but it was not clear how many seconds passed as the members of the courtroom listened to the recording. It could have been as many as 8 seconds, but it might not have.

Estes: “When you were interviewed the next day you said that the officer at the top of the stairs did the tasering. Then they fired three shots in rapid succession.”

Ostling: “Yes, it was very quick.”

Estes: “Did it appear that there was any hesitation, as if the officer was making a single decision?”

Ostling: “I don’t know what he was doing.”

Estes: “One of the officers asked you if there was any other access point to Doug’s room. You said there was a door that only opens from the inside. Officer Benkert told you not to go up because it’s not safe?”

Ostling: “It was [Officer] Portrey.”

Estes: “After the shots were fired, who told you not to go up the stairs? Officer Portrey?”

Ostling: “Benkert.”

Estes: “Isn’t it true that Officer Benkert is the only one you are suing because he prevented you from entering your son’s room, but he didn’t actually speak to you? It was Portrey who told you not to go up.”

Ostling: “Yes, but the gun was what told me he wouldn’t let me go up there because it wasn’t safe.”

Estes: “I’d like to talk a little about Doug’s drinking. He had been drinking that night.” [Douglas's blood alcohol level was 0.1, well over the legal limit for driving.]

Ostling: “I take a drink of wine at dinner. So did Doug. I would assume that he had a glass of wine with his dinner. I assume that he had several glasses of wine.”

Estes: “Do you recall saying that he would binge drink?”

Ostling: “I don’t recall what I said. I observed extra empty bottles in the recycling bins, but I didn’t observe him drinking so I don’t know.”

Estes: “You said that he was harder to deal with when he was drinking.”

Showing an enlarged photograph as evidence, Estes said, “This is the interior of Doug’s apartment following the shooting, pointing to several large bottles of alcohol. Did you see the numerous bottles in the room the week before when you were in his room fixing his faucet?”

Ostling: “He bought things in quantity to save money. Doug believed that he was Jewish and would celebrate the Sabbath and drink on Saturdays.”

Estes: “When officers asked you if he was drinking that night, what did you say?”

Ostling: “I saw him walking through my living room 15 minutes earlier and he looked perfectly fine. He was not drunk.”

In a final part of the cross examination, Estes showed the jury a large solid wooden handle about 3 feet long, apparently from a broken tool. “This was found right next to Doug’s body when the police entered. Would this have any use as a weapon?”

Ostling: “It could be used for that; it could also be used as a fire poker.”

 

Read our previous articles about this case:

Family Portraits Emerge in Ostling v. Bainbridge: A Disturbed Son, a Detached Father

Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit.

Ostling v. City of Bainbridge: The Trial Begins.

City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

 

Images by Sarah Lane.

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Family Portraits Emerge in Ostling v. Bainbridge: A Disturbed Son, a Detached Father

Bainbridge Island residents William and Joyce Ostling are suing the City of Bainbridge Island, Police Chief Jon Fehlman, and Officer Jeff Benkert for alleged civil rights violations in the death of their son Douglas Ostling, a mentally ill man who was shot by Benkert in their family home on Springridge Road on the evening of October 26, 2010.

As the sad story of Douglas’s death and the history and details around that tragic event unfold, personalities and family dynamics are emerging.

Although the plaintiffs’ attorneys thus far have sought to downplay Douglas’s mental illness, the day-long testimony by his father, William, as well as the public record, make it clear that Douglas was severely mentally ill and had a history of volatile, and at times deranged and aggressive behavior. Furthermore, his father again and again in his testimony revealed detachment from the realities of his son’s behavior.

William Ostling’s Interview

The Ostlings’ attorney Nathan Roberts lead a 3.5-hour interview with William Ostling, starting with Douglas’s birth until his death at age 43. William, a 66-year-old, tall, lean man with receding white hair, is receiving chemotherapy treatment for cancer. His testimony was lucid but often rambling, with his lawyer giving him latitude to stray at times from answering questions directly. Although William could recall precise details about things like the measurements of areas of his home, which he and his wife Joyce built and have expanded over several decades, when he recounted Douglas’s life he frequently stumbled into areas where he could not recall events and referred to his wife as the person who could clarify points about his son. The year and even decade when Douglas graduated from high school, for example, was a question that stumped William for a long awkward time in the courtroom until Roberts moved on without an answer.

Describing his relationship with his young son, Ostling said, “I felt quite close to him as he was going through his early years of school, but that changed over time, and he became closer to his mother.”

When Roberts asked about Douglas’s college years, Ostling explained that he transferred from the University of Washington to Shoreline Community College to Pullman (which Roberts pointed out was over an eight-year period): “Something happened when he went to Washington State, said Ostling. “He didn’t interact with you, did not communicate the same way. He wasn’t the same person. He moved home. Being good parents, we encouraged him to get a job. But his personal interaction skills seemed like they went away. . . . He couldn’t hold down a job.”

Ostling continued: “During that time it was not a warm environment in our household with Doug. . . . There were lots of arguments, lots of loud voices and finger pointing at each other. We had never experienced any of this as parents. We decided it was time to seek help. We first went to counselors through our church; they pointed to some other people.”

Roberts asked, “Did you take Doug to see psychologists and psychiatrists?” Ostling replied, “He was an adult, so we couldn’t force him, but we encouraged him to get help.”

Roberts: “On a daily basis when you were interacting with him, can you give the jury a sense of what it was like to be around Doug?”

Ostling: “At times it was quite normal, but there were other times he would get quite excited about something. There were other times he would go off in a different world.”

Roberts: “Can you tell us about the time he destroyed a chair?”

Ostling: “We were being confrontational. He went up to his room and broke a chair through his wall. That was enough to give us a start. . . . Once we realized and admitted that Doug was mentally ill, we started to do research—mostly my wife did this.”

Roberts: “What was your response to this incident?”

Ostling: “My wife called 911. The Bainbridge police came to our house. They took him to Harrison Hospital in Bremerton, but they did not have room for him there. . . .”

Roberts: “Can you tell us about the rifle Douglas had long before the night he was shot?”

Ostling: “He was given a hunting rifle from his grandfather—every child received one who lived on a farm. He probably was in high school or junior high. It was taken away in the late 1990s or 2000 or 2001. It appeared that he was going to take off from home. My wife contacted Kitsap Mental Health, who brought someone and an officer to check on him. The officer saw the rifle in the corner of his room and decided to take it away and put it in safekeeping.”

Roberts: “Has Doug owned a gun since then?”

Ostling: “Not that I know of.”

During the time the Ostlings’s oldest child, Kimberly, who has struggled throughout her life with the effects of childhood Rubella, had a stroke, Douglas left for California in a car his parents gave him. When speaking briefly about Kimberly, William Ostling teared up and had to take several moments to regain his composure. This was his most outwardly emotional moment of the day.

Roberts continued his questioning: “Can you tell us about Douglas at that time?”

Ostling: “We didn’t know he had left, because we were actively involved in our daughter at the hospital—24 hours a day. We filed a missing persons report. I think the Bainbridge police were involved with that.”

Roberts: “Did you visit Doug in California?”

Ostling: “We didn’t go down immediately to visit him because we were involved with caring for Kim. My wife was on the phone with people down there. Doug had a cell phone, would call regularly and talk to my wife. I was working. Some of our family members would visit and check on him. He was always clean, taking care of himself. He was living out of his car. Then he lost his car and started living out of a storage unit. He was living on the streets of LA. He would shower at the gym. As a family we went down to visit him and went to Disneyland. He knew there was always an open invitation at home.”

Doug moved back home in 2005, into a space above the garage that the Ostlings had previously rented as a part of a bed & breakfast business they had run for 10 years.

Ostling: “We considered him living independently. We got him another car. He was a different person when he came home from LA. When you’re living on the street, you’re a little different. It took a little while to get him back into the family support group.”

Roberts: “What was it like living with him again?”

Ostling: “He liked to wash his clothes at night. He would come through the house with huge loads of clothes. He was paranoid—he thought if you touch a piece of clothing it had to be washed, so he was washing all the time. He always had a different time frame, was up at night. This didn’t correspond with my sleeping habits; I had to catch the 5:20 ferry to go to work. I wouldn’t see him for a week at a time. We worked it out so he would get most of his washing done before I went to bed. . . . He was always invited to come for dinner. He would sometimes join the family meal. He had a different diet than ours. He was very selective in what he ate.”

Roberts: “How has Doug’s death impacted your life?”

Ostling: “This is hard. There is a special bond between a mother and her children. There was a special bond between Joyce and Doug. She took care of him, went to the doctors with him even when I was going to. There was a special love from her even when it was not returned by Doug. It comes out in anger, bitterness. Sometimes you have to take it out on somebody. We did go to a grief counselor.”

Cross Examination

Not surprisingly, William Ostling’s testimony abruptly shifted when defense attorney Stewart Estes cross examined him. Numerous revelations came out about Douglas before the line of questioning moved to the events of the night he was killed, which will be covered in our next article about the court case. During his cross examination, William Ostling showed increasing unwillingness to answer direct questions about his son.

Estes: “In December of 2001, you and your wife asked a counselor to help with Doug’s mental illness. He had a loaded rifle, and your wife was worried he would hurt somebody if he got angry. Are you are aware that Doug had threatened to kill you, that your wife said that?”

Ostling: “I don’t know. You’ll have to ask my wife.”

Estes: “Doug had a loaded rifle that your wife was concerned he would shoot someone with and that’s not a fact that you know?”

Ostling: “We were concerned with his mental health. That’s why we called Kitsap Mental Health, I believe, but that’s third hand. Talk to my wife and get the first hand, that it was not because of the rifle.”

Estes: “You were aware that he was going to California?”

Ostling: “No. I said I knew he was leaving.”

Estes: “Part of Doug’s mental illness involved sexual delusions. One of those delusions involved pop singer Britney Spears. You are aware of this?”

Ostling: “I did not know that. You’ll have to ask her if she knew that.”

Estes: “Doug was found sitting on Britney Spears’ doorstep, disguised as a security guard, with pepper spray and handcuffs. You knew that.”

Ostling: “I don’t know that.”

Estes: “Did your family contact California law enforcement to warn them that Douglas had a loaded rifle?”

Ostling: “We did not know where he was.”

Estes: “You knew that he went to a hospital in the early 1990s and that those doctors recommended psychiatric medication?”

William: “I don’t remember that.”

Estes: “From 1994, 1998, 2004, and 2008, Douglas saw doctors, and each one recommended medication for his mental illness.”

Ostling: “You have to do a complete diagnosis of a person to prescribe medication, and that had never been done to my knowledge.”

Estes: “Chronic paranoid schizophrenia was a diagnosis.”

Ostling: “I think I remember that he took some medicine but it affected him so badly and the others at the clinic were so much more bad off. He chose to be Doug Ostling, and we had no control over that. We encouraged it all along. We offered to take him to a psychologist, but he chose not to.”

At this point Judge Leighton admonished the jury: “The questions are not the evidence—the answers are the evidence.”

Douglas’s 911 Call Springridge Road NE street sign

The Defense played the call to 911 that Douglas Ostling made from his home the evening of October 26, 2010. The exchange between Douglas and the Cencom worker went on for several long minutes, with Douglas yelling and frequently repeating himself: “Where are you. What is that? What are you? What is you, what is you, what is you?!” Initially the Cencom worker tried to determine the purpose of the call and if there was an emergency: “This is the police. This is 911. Are you having an emergency?”

Yelling at the top of his lungs and breathing into the phone, Douglas continued, “What are you? What am I to you? What are you? Are you intelligent?!”

Apparently identifying his name from his phone number and determining that she was speaking with a mentally ill caller, the Cencom worker changed her tone and responses: “Why are you so upset Douglas? Hey, Douglas, are you home alone? Douglas, I would really appreciate it if you would stop yelling in my ear.” After Douglas continued barking, “You are a useless! You are a useless! You are a useless!” the Cencom worker responded, “Okay I’m going to hang up now but have law enforcement come and check on you.”

Estes: “Douglas called 911.”

Ostling: “I heard his voice on the tape; I don’t know if he called or not. I think I heard him ask questions. I didn’t hear him get any answers.”

Estes: “Doug was intoxicated. He had a blood alcohol level of about 0.1.”

Ostling: “But he wasn’t driving.”

Estes: “Douglas was not a serial 911 caller, correct?”

Ostling: “Yes, that was the only time we know of him calling 911.”

Estes: “Isn’t it true that Doug thought he was having some kind of emergency? He slammed doors twice in your house that night.”

Ostling: “Doug was holding a tall stack of laundry, so he could have just pushed the door hard with his leg.”

Estes: “But you said, ‘Doug don’t slam the door.’ Doug was upset that evening. You heard your wife tell the detective that Doug was upset and slammed the door and yelled after going through the door the second time.”

Ostling: “Yes. . . . We have learned over time that sometimes it’s better to leave him alone.”

Estes: “When you heard Doug yell, did you feel you knew how he was feeling?”

Ostling: “We didn’t know what he was feeling. He’s like any other human being; sometimes you need to shout and holler. His way of taking out his frustrations was to go to his room.”

Estes: “You would tell him to go to his room.”

Ostling: “As a child we would tell him, time out, go to your room.”

Estes: “Could the neighbors have heard it [Doug's yelling]?”

Ostling: “I’m sure they might have heard it; we don’t have close neighbors, but they might have heard it.”

Estes: “You would never be concerned about him hurting you when he was yelling at you?”

Ostling: “In my mind, he was not violent.”

Estes: “If officers asked you if Doug was violent, you would say he was not?”

Ostling: “Right.”

Estes: “Your wife told your neighbors not to make eye contact with Doug.”

Ostling: “I don’t know that.”

Estes: “Your family told your neighbors to avoid Doug if possible.”

Ostling: “I did not.”

Estes: “You would hear him yelling, and your family’s accepted method of responding was to ignore it?”

Ostling: “We never went up to his room. I only went up to his room when I was invited . . . to fix things.”

Estes: “Doug was upset earlier that evening.”

Ostling: “Yes.”

Estes: “Might it have been possible that when you heard Doug yelling that was when he was calling 911? The timing would have been about right.”

Ostling: “It might have. I never went to his door. We would go to the garage and yell to see if something was wrong. His yelling was infrequent.”

Estes: “That wasn’t because you were concerned he might open the door and harm you, was it?”

Ostling: “No, I don’t think he would have.”

 

Read our followup article about this case:

William Ostling Testifies About the Night a Bainbridge Police Officer Killed His Son

 

Read our previous articles about this case:

Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit

Ostling v. City of Bainbridge: The Trial Begins

City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

 

Image by Sarah Lane. Photo by Julie Hall.

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Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit

Tuesday morning in the civil lawsuit by William and Joyce Ostling against the City of Bainbridge Island, plaintiff attorney Nathan Roberts called to the stand in Courtroom B of the Tacoma Federal Courthouse Jeff Benkert, the officer who shot Douglas Ostling, the Ostlings’ son, on October 26 of 2010.

Key Points in Questioning

Roberts’s questioning throughout the day focused on some key details about the events of the night of the shooting. He doggedly pursued the 32-year-old Benkert on the following issues:

  • the perceived failure of the two officers to follow the procedures outlined in the Bainbridge Island police manual;
  • Benkert’s decision to use deadly force;
  • what Rogers continually described as Benkert’s and Officer Dave Portrey’s decision to enter Douglas’s room despite the fact that Douglas was telling the officers to go away; and
  • Benkert’s amount of training in mental illness both before and after the incident.

Benkert stuck to his version of events, which differs from the Ostlings’ version: that he never entered Douglas’s loft apartment, that he never touched the knob of the door, that Officer Dave Portrey was up the stairs ahead of him, and that before shooting Benkert yelled instructions repeatedly that Douglas was to put down his ax.

Throughout the day-long questioning, which at times was clearly intended to provoke him or possibly catch him in a lie, Benkert remained calm, answering clearly and making eye contact with jurors, despite the fact that a few of them seemed to not be looking back at him.

The Manual

Roberts spent a lot of time reviewing the procedures in the Bainbridge Island police manual for dealing with a mentally ill person. Stewart Estes, the attorney for Jeff Benkert, raised concern about the line of questioning since it did not speak to the matter of civil rights violation at the heart of the lawsuit. But Judge Leighton allowed it.

Roberts asked Benkert if he had been given a copy of the manual when he became an officer. He said yes. Roberts asked, “You know you’re supposed to use the manual to guide your work?” Benkert answered yes.

Roberts pointed out to Benkert that, although he had said in deposition that he didn’t think special skills were required to deal with the mentally ill, the manual specifically says they are. The manual also instructs officers to gather information. He asked what information Benkert had gathered. He said that William Ostling, Douglas’s father, had told him that Douglas was mentally ill and that Douglas had no weapons. Roberts said, “You asked nothing else?” Benkert said he hadn’t.

But later during his testimony, Benkert revealed that he had at least gleaned other bits of information from his observations. He said that when Douglas began yelling at the officers from behind the closed door of his room, Benkert could eliminate the possibility of his being unconscious, and he was able to confirm the irate state noticed by the dispatcher. Benkert found it interesting that Douglas yelled at the officers but would not communicate at all with his father. To Benkert, that was a sign of a potential domestic dispute.

The manual recommends officers avoid physical confrontation. Rogers asked if trying to get in Douglas’s room might lead to such confrontation. Benkert admitted that it might. Rogers said that the manual recommends trying to calm the mentally ill person down. He asked Benkert what he had done along those lines. Benkert said that Portrey had tried talking to Douglas through the door.

Rogers said, “Did that seem to calm him down?”

Benkert answered, “No.”

Rogers asked Benkert if he had thought that opening the door might frighten Douglas. Benkert said it had not occurred to him.

Rogers said that the manual recommends communicating with the individual to determine what is bothering him or her. He asked, “Did you determine what was bothering him?” Benkert said no.

The manual also suggests officers solicit professional assistance. He asked if Benkert had done that. Benkert said no.

Roberts said, “You weren’t following your manual were you?” Benkert said that he was responding to an unknown problem 911 call, which is not synonymous with a mental health situation.

Roberts said, “You didn’t calm the situation.” Benkert responded, “We were attempting to.”

Then Roberts said, “There was not an emergency at the Ostling house until you created one, correct?”

In another section, the manual instructs officers to file a report within 24 hours of an incident involving deadly force. But Benkert didn’t give a statement until two and a half months later. Roberts asked him about that. Benkert said that he was fully willing to submit to an interview, but no one had asked him to.

Julie Kays and Nathan Roberts, attorneys for the Ostlings

Julie Kays and Nathan Roberts, attorneys for the Ostlings

The Use of Deadly Force

At one point Roberts began a line of questioning about weaponry. (On the day of the shooting, Ostling had been holding a double-bladed ax and, when Benkert felt threatened by the weapon, he shot at Ostling three times.) Roberts asked if a kitchen knife could be considered a weapon, and Benkert said, yes, it could. He asked if a paring knife could be, and Benkert said it could be. Then Roberts held up a ball point pen and he asked if that, too, could be considered a weapon, and Benkert said that, under certain circumstances, it could.

Roberts argued that it’s not necessarily the object that makes it a deadly weapon; it’s how it is used. He added that, by extension, holding a weapon, such as an ax, doesn’t mean that another person can legitimately use deadly force in response. Benkert said, “If I perceive it as a deadly weapon then I can.” At that point, in a clear attempt to provoke, Roberts said to Benkert, “Should I put my pen down?” Benkert replied placidly, “It’s up to you.”

During his testimony, Benkert gave his account of what happened that evening:

He drew his firearm and gave Douglas commands to drop the ax. Portrey did the same. Portrey backed into the landing. Doug backed into the apartment a couple of steps. Portrey radioed for emergency traffic. Benkert told Doug not to come toward them with the ax or he would be shot. He advised Portrey to use a taser. Portrey holstered his firearm, took out the taser, leaned into the door, and took a taser shot. The impact looked good. Doug hunched over, indicating an impact. His arms moved around. But he never relinquished control of the ax. Then he stood upright again.

Benkert explained that their training in taser deployment teaches them that the electrical current runs for five seconds during the deployment of the trigger. Once the taser is off, the pain ceases and the person regains control. The police thus essentially have five seconds to do what they need to do. He said that in that time they will advance toward the person to remove his or her weapon or to apply handcuffs, for example. Then Benkert resumed his account.

Portrey took a step or two. Benkert yelled that the taser was not working. Portrey was now in the way of Benkert’s line of shot. He yelled, “I got no shot, I got no shot.” Portrey backed out and perhaps fell because there was a clatter. Doug was still holding the ax, he took an aggressive step toward Portrey, and Benkert fired from below.

Benkert explained how proper shooting requires that you look through the gun sights, lining up the back one between the two at the front of the firearm. He said it was wrong to shoot a gun by looking at the target. And that was why he couldn’t answer Roberts’s questions about whether Douglas had an arm behind the door or was closing the door and about specifically how Portrey had fallen.

Roberts asked Benkert how good a shot he is, and Benkert said he’s a 90 to 95 percent shooter.

Roberts asked, “You’re trained to aim for the chest?” Benkert said yes.

Then he asked, “Have you ever been trained to shoot someone in the leg?” Benkert said no. Two of Benkert’s shots hit Douglas in the leg.

To account for the shots to Douglas’s leg instead of his chest, Benkert explained that the landing Douglas was standing on was at Benkert’s own chest level as he was on the staircase and that when an officer brings up his gun from the low-ready position, when that close to a person he is trained to begin shooting the second the target appears within the sights, even as he is moving his arms up.

Roberts asked whether Benkert initially believed he had hit Douglas with any of the three shots.

Benkert said, “I didn’t know if rounds had impacted him.”

Roberts asked if he thought it was a probability or a possibility.

Benkert concluded that it was a probability.

Roberts also wanted to know how the door to Douglas’s room had closed as he was being shot. He asked Benkert, “Did you close the door?” Benkert said no. “Did Portrey?” Again, Benkert answered no. “Was it an act of God?” Benkert said no.

Roberts asked, “Did it occur to you that you might have shot someone through a door?” Benkert said it did.

Issue of Warrantless Entry

The Plaintiffs maintain that Benkert violated Douglas’s Constitutional rights by entering his room when he was in fact telling the police to go away. Throughout the questioning, Benkert maintained that he had never entered the room.

Roberts asked Benkert about the Constitutional right to protection from warrantless entry. Benkert agreed that it is a right protected by the Constitution. He agreed that just because someone calls 911, police don’t get to “barge into their home.”

Roberts asked him what is the police training about warrantless entry when there’s an emergency. Benkert said that exigent circumstances and consent were two criteria that could be used to sanction warrantless entry. He defined exigent circumstances as anything that would require an immediate response such as imminent danger or a medical emergency.

Benkert said that William Ostling had never denied him permission to enter the home and that, in fact, William had provided him with a key to enter Douglas’s room, which Benkert had passed up the stairs to Portrey. He said that William had never said they couldn’t enter or that they should leave. He also said that he believed the home including the loft apartment to be the property of William, not Douglas.

Roberts pointed out that the 911 call had come from the residence of a Douglas Ostling, as Douglas has his own phone line, but Benkert did not appear to c0nsider that evidence of Douglas being the owner of the apartment.

Here is one example of the kind of exchanges that occurred numerous times between Roberts and Benkert about the question of entry into Douglas’s apartment:

Roberts asked, “Were you and Portrey considering if there was something in the apartment that could be used as a weapon?” Benkert answered yes. Roberts countered, “And yet you went in anyway.” Benkert said, “I never went into the apartment.” Roberts said, “You were going to go into the apartment.”

Roberts asked, “Did you think that a physical confrontation might erupt?” When Benkert answered yes, Roberts said, “And yet you intentionally exposed yourself to that possibility.”

Benkert said, “It was our intention to observe him firsthand to see if there was an emergency.”

Rogers asked, “Is that consistent with the Constitution?”

“I believe it is.”

“So you believe you can enter a residence.”

“I was already in the residence,” he said. “It’s a bedroom of the residence.”

Benkert said that opening the door was the only way to tell what the situation was.

Roberts asked, “Was it?”

Benkert said, “I believe so.”

Roberts asked, “What about letting Bill do it?”

Benkert said that William’s attempts had been met only with silence from Douglas.

Benkert's attorney, Steven Estes

Benkert's attorney, Stewart Estes

Under cross-examination by Estes, Benkert said that he had entered someone’s house before without consent on a welfare check, a check to make sure someone’s okay. He described a situation in which an elderly woman was in a bathtub when her caregiver became locked out of the house. Estes asked, “Is it part of your training to enter a home uninvited on a welfare check?” Benkert said yes.

Then Estes asked if William had verbally objected to the officers following him into the house. Benkert said no.

Estes asked if it would have been okay if William had said that the officers should wait outside the front door while he went upstairs to check on his son. Benkert said that would not have been okay and added that family problems are sometimes worse than between people who don’t know each other.

Estes asked about when one of the people is mentally ill. Benkert said the mentally ill are not more or less prone to violence but that they can escalate to that point faster.

He also said that if someone has been violent in the past it is a good indicator of whether they will be violent again. And he told Estes that he has been in 911 situations where a 911 caller has hurt him- or herself but says everything is fine.

Estes asked Benkert if he would have acted differently than he did that night if someone had told him any of the following:.

  • Douglas refuses to take his medication.
  • He has assaulted both his parents.
  • He had a loaded firearm confiscated.
  • He has Asperger’s syndrome
  • He’s extremely intelligent.
  • He doesn’t need to be under a doctor’s care.
  • He doesn’t need antipsychotic meds.
  • He has never been assaultive to anyone.

For each, Benkert answered no. But, he said, some of the information taken together would have alerted him to the type of person they were dealing with, and it would have alerted him to more specific dangers.

Training

Benkert told Roberts he had received some mental illness training while in the LAPD. He said he’d had no formal training since. He said that Bainbridge Island did not provide training as far as he recalls. He added that it isn’t a topic in the Washington equivalency training, which is all he needed to take upon arrival to the Bainbridge police force since he was already trained as an officer in California.

When Roberts asked, Benkert said he had not received any additional training since the incident.

Under cross-examination by his attorney Stewart Estes, Benkert described his training in greater detail. He had taken a scenario-based tactical course during his five years in LA. He had received training in dealing with the mentally ill, in using a taser, in first aid, and in traffic safety, among other things. He said he had received training about when it’s lawful to detain a mentally ill person.

When Estes asked him about his experience with the mentally ill, Benkert said he had had to tackle a mentally ill man running in traffic in LA.

Estes asked Benkert about the FTO badge on his uniform. Benkert explained that it means that he’s a training officer and provides training to others. He said he receives ongoing training as a Washington officer. He also said that 24 hours of training are required of officers per year, but that he averages 40.

He said they receive quite a few mental illness calls on the island. He said he has received specific training in how Kitsap Health officials want them to handle those.

Other Issues

Roberts also introduced a few other concerns in his examination of Benkert.

  • He asked Benkert if he was watching cartoons in the break room at the police station after the shooting. Benkert said he didn’t recall. Roberts asked if he had been watching a cartoon called Robot Chicken. Benkert said he didn’t recall that but he didn’t know.
  • Roberts asked if Benkert knew that Chief Fehlman had reported inaccurate information to the public after the shooting. Benkert said he had seen Fehlman’s statement. Then Roberts said, “You didn’t take any steps to correct that.” Benkert replied, “I advised my immediate supervisor.” He didn’t know what if anything that lieutenant had done with the information afterward.
  • Roberts said that Benkert had felt comfortable discussing the incident on Facebook even though he hadn’t filed a report about it. He shared a Facebook exchange Benkert had had with a friend who wrote, “Hear you did some combat qual.” Benkert said, “No sweat here. Bad guy should have listened a little better.” Roberts asked if Benkert thought that Douglas was a bad guy. Then Benkert explained what police mean by good and bad guy—he said that Douglas had become a bad guy when he “aggressed” toward him.

The attorneys were done with Benkert by the end of the day, and it was agreed that Wednesday morning would begin with William Ostling’s testimony.

Read our previous articles about this case:

Ostling v. City of Bainbridge: The Trial Begins.

City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

 

Illustrations by Sarah Lane.

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Ostling v. City of Bainbridge: The Trial Begins

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.

Defendants leave court on a break

Defense Team leaves court on a break.

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.”

Voir Dire

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.

Federal Courthouse in Tacoma

Federal Courthouse in Tacoma.

Opening Arguments

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.

Lobby of Federal Courthouse

Lobby of Federal Courthouse.

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.

Read our other articles about this case:

Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit.

City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

 

Photos by Sarah Lane.

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City Fails to Get Ostling Case Dismissed: Trial Set for the 14th

Monday U.S. District Judge Ronald B. Leighton issued a 16-page document ruling that the Ostling family’s lawsuit against the City of Bainbridge Island and Police Chief Jon Fehlman and officer Jeff Benkert can go forward.

Although the defendants failed to secure a summary judgment from the judge on all of the plaintiffs’ claims, Leighton did grant summary judgment on four specific claims, which will go to court.

1. Excessive Force Claim

Douglas Ostling, a mentally ill man, was fatally shot in October of 2010 by police whom he had summoned to his parents’ home where he lived. In their suit, Ostling’s parents and sister argued that police used excessive force against Douglas, who was armed with an ax, by attempting to taser him and then shooting him three times through a closing or closed door. The family also argued that the police violated Douglas’s fourteenth amendment rights by entering his room. The defendants’ and plaintiffs’ versions of the events that led to the shooting differ substantially.

The federal judge denied the defendants’ request for a summary judgment on these claims, which means that a court will have to decide. He wrote, “The Court must conclude if the situation was as calm as William [Ostling's father] presents it—if Douglas had taken a defensive posture deep inside his apartment, if the officers had no pressing reason to escalate the situation, and if Douglas was shot through a door closing in the faces of the officers—the use of deadly force would be clearly unreasonable. Thus, it cannot be said as a matter of law that the officers are entitled to qualified immunity.”

2. Failure to Secure Medical Care Claim

The Ostling family is also arguing that the police failed to take reasonable steps to secure medical care for Douglas. After Officer Jeff Benkert shot Ostling, police cordoned off the area to ensure the safety of officers and the Ostling family. Medics arrived within 9 minutes but were prevented from rendering aid for an hour and twenty minutes, during which time Douglas bled to death from a bullet wound to his femoral artery.

The judge wrote that “there is no argument that Douglas was armed with a firearm, and Plaintiffs have argued that there was little or no risk involved in investigating Douglas’s status through the skylight. Given these facts, summary judgment is unwarranted. And for similar reasons, the Court must deny qualified immunity.” He added that qualified immunity for the police would be inappropriate when “the disputed evidence suggests that officers knew Douglas was wounded, had no firearm, and had a safe avenue to investigate his medical needs.” Again, because the judge would not issue a summary judgment on this matter, the Court will have to decide.

3. Failure to Train Police Adequately Claim

The judge called plaintiffs’ claims that the police failed to train police adequately to deal with mentally ill citizens “tenuous.” But he said that because they presented evidence on each element of such a claim, a Court must decide.

4. Deprivation of Son’s Companionship Claim

Judge Leighton argued that Douglas’s parents may proceed to trial with their claim that they have been deprived of the companionship of their son.

However, he ruled that his sister Tamara may not. Leighton also issued summary judgment on the unconstitutional conduct claim, concluding that the plaintiffs showed no evidence that the City ratified unconstitutional conduct. This issue will not be argued in Court.

The trial is set for next Monday, May 14, in the U.S. Western District Court of Washington in Tacoma.

Read our other articles about this case:

Family Portraits Emerge in Ostling v. Bainbridge: A Disturbed Son, a Detached Father

Officer Jeff Benkert Takes the Stand in the Ostling Civil Suit.

Ostling v. City of Bainbridge: The Trial Begins.

 

Photo of Douglas, Joyce, and Bill Ostling courtesy of The Seattle Times.

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