Ostlings' attorney questions prosecutor's approach, judgment
By BRIAN KELLY
Bainbridge Island Review Editor
January 25, 2011 · Updated 10:39 AM
The Tacoma attorney for the family of Douglas Ostling, a mentally disabled Bainbridge Island man who was slain by an island police officer last Oct. 26, said Monday he is prepared to file a lawsuit against the city and police.
"Experts are telling us," said Jack Connelly, "that a case exists against the police department. But before we file I want to see all the reports, ballistics, other evidence, everything. Right now, that hasn't been forthcoming from the county."
Connelly's statement came in response to a letter sent by Kitsap County Prosecuting Attorney Russell Hauge on Jan. 15 to Ostling's sister, Tami Ostling. In a Jan. 4 letter, she asked Hauge to reopen the investigation of her brother's shooting death in his upstairs apartment, which is attached to the Ostling home on Springridge Drive.
Hauge had issued a "Decline to Prosecute Notice" on Dec. 22, ruling that the fatal shooting of Ostling by officer Jeffrey Benkert was not a crime because Ostling was threatening Benkert and fellow officer David Portrey with a "double-bitted axe."
The Ostlings, through interviews with investigators and Tami Ostling's letter to Hauge, have questioned why the officers forced contact with a man in his residence who they knew was mentally unstable; the actual events that led to Benkert firing three shots; and why it took law enforcement officers about 75 minutes to enter the apartment after the shooting.
While refusing to revisit his initial ruling, Hauge made it clear in his letter to Tami Ostling that in investigating a peace officer using deadly force the prosecutor's role is limited to determining "whether there is evidence that would warrant criminal charges against the officer who fired the fatal shots," he said. He added that the issue of the delay between the shooting and police entry into Ostling's room is beyond the scope of his responsibility.
"The prosecutor's inquiry is limited to the actual use of deadly force: the shots fired by Officer Benkert," he said, adding that the findings showed the officers acted responsibly.
The incident began when a 911 dispatcher received a disturbing call from Ostling at about 8:40 p.m. The 43-year-old islander, who had been diagnosed as suffering from schizophrenia, was said to be yelling incoherently "similar to an 'excited delirium state,'" according to the Cen-Com recording filed as part of the Kitsap County Sheriff's Office report used by Hauge to make his decision.
The two Bainbridge officers were dispatched and both were at the scene at about 8:45 p.m.
They talked first to parents William and Joyce Ostling in their home and ascertained that the call might have come from Douglas Ostling's studio apartment located above the family garage. According to the sheriff's report, William Ostling accompanied the officers up the narrow staircase, received no response when he knocked on the door several times, and then went to get a key to unlock the door as the officers had requested.
Portrey said in his statement that while the father was getting the key he identified himself through the closed door as a police officer, "asked to speak with him about his call to 911 and that I wouldn't leave until he spoke to me face to face." In response, Douglas Ostling twice "aggressively" told him to leave, Portrey said.
When William Ostling returned with the key, Portrey told the father to leave the staircase, then reached for the door and attempted to insert the key. But before he did, the door opened quickly and Ostling was standing about one foot inside the room "holding a long-handled, doubled-headed axe above his head and to his right... very agitated and yelling for us to leave the house."
Both officers drew their weapons and ordered him to drop the axe, while Benkert, who was standing a few steps down from the landing, told Portrey to use his Taser. After shooting Ostling in the chest with the Taser, Portrey said, "he took two steps backwards and started swinging his arms side to side in what looked like an attempt to remove the barbed Taser pins from his chest."
Portrey said Ostling moved toward him still holding the axe instead of falling down, which caused the officer to lurch backward, trip and fall on a second landing.
Benkert then fired three shots, according to the sheriff's report, one of which missed the target and lodged in the door. Another entered Ostling's knee before exiting and also splintering the door, while the fatal shot struck his left thigh and lodged in his groin area. Ostling fell into the room with the door closed behind him, police said.
Tami Ostling argued in her letter that her brother "was attempting to close [the door] between himself and the officers outside his room when he was shot through the door," with two bullets lodging there. The one that struck his femoral artery caused him to bleed to death during the time he collapsed behind the door and when officers opened the door more than an hour later.
"The bullet holes in the door and the bullet which was lodged in his leg is proof positive that he was in his room behind his door when he was shot and not outside the door on the landing holding an axe over anybody as falsely stated in your report," she wrote in her letter to Hauge.
Hauge said an investigation by sheriff's detectives clearly indicated that Ostling was either outside his room or at least standing in the open doorway when Portrey fired the Taser.
He said the detectives used standard, accepted practices to track the trajectory of the bullets that struck the door. "This analysis shows that the door was partially open when struck by these two bullets." he concluded.
Connelly said there needs to be a full review of the ballistics and whether the door was closed or not "because I don't think an objective review has happened. Rather his letter seems to be choosing a side and being an advocate for that side, when the actions of the police should be critically analyzed in a fair and objective way."
The attorney also took exception with Hauge's claim that Tami Ostling had been "reported stating that you, yourself, witnessed" the shooting after telling sheriff's detectives during an interview that she had been in the bathtub during that time. Hauge didn't refer to the source of her statement, but she didn't mention being an eyewitness in either her letter to Hauge or in the family statement she released to the Review.
"Hauge reveals a strongly callous lack of concern over the concerns of a younger sister whose disabled brother lost his life in a situation in which the police were told that they should 'go away' before they forced their way into his room," Connelly said.
"From what I understand," he added, "the triggering officer hasn't made a statement or filed a report, which means the prosecutor has not provided the entire file for review. And I'd like to see that door, too."
The attorney said a coroner's inquest "would be a good idea and then a trial, if necessary, so we can get in there and find out what really happened."
The city's Interim City Manager Brenda Bauer released a statement to the community last week that ended by sending "sincere condolences to the Ostling family." The statement also said the city supports the county's investigation and added that the police department "is also conducting an internal review of the event..."Contact Bainbridge Island Review Editor Brian Kelly at email@example.com or 1-206-842-6613.