Posted on 20 May 2012.
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:
- Bainbridge Island Police Officer Benkert used excessive force against Douglas Ostling after Douglas summoned police to his home with a 911 call;
- Bainbridge Island Police failed to secure medical care for Douglas after he had been shot, eventually resulting in his bleeding to death;
- The Bainbridge Island Police Department failed to adequately train its officers in dealing with mentally ill citizens; and
- 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?”
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?”
Roberts: “Did you have a clear view of the officers the whole time?”
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.”
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?”
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?”
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?”
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?”
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.