Ostlings file federal lawsuit against city, police officers
By BRIAN KELLY
Bainbridge Island Review Editor
March 24, 2011 · 4:47 PM
The family of Douglas Ostling has filed a federal lawsuit against the city, Police Chief Jon Fehlman and Jeff Benkert, the police officer who fatally shot the mentally ill Bainbridge Island man in his home on Oct. 26, 2010.
The civil lawsuit, filed in U.S. Western District Court of Washington in Tacoma, claims that Benkert’s use of excessive force led to Ostling’s death and violated the Ostling family’s constitutional rights – citing the Fourth and 14th amendments to the U.S. Constitution.
The complaint also charges the city and Fehlman of violating the family’s constitutional rights by failing to train the department’s officers to deal “with citizens in psychological and/or mental distress” and “use of de-escalation techniques, non-lethal tactics [Tasers] and the decision-making process that should accompany use of lethal force.”
Filed by attorneys Jack Connelly and Nathan Roberts of Connelly Law Offices in Tacoma, the complaint against the city and Fehlman also cites the fact that Ostling, who bled to death after being shot in the upper thigh of his left leg, went unattended in his apartment for 75 minutes after Benkert three rounds at him – despite the family’s request that emergency aid be called.
The suit, which lists the plaintiffs as parents Bill and Joyce Ostling, and sister Tami Ostling, seeks general and special damages “in an amount to be proven at trial.”
Connelly wouldn’t go into detail about the family’s knowledge of what had occurred that night, but he said that Bill Ostling was a witness and Joyce and Tami Ostling were also in close vicinity to either see or hear what had occurred.
“This lawsuit will allow us to depose the officers and gain access to evidence that hasn’t been made public,” Connelly said. “We need to know why and how it happened, not the one-sided explanation offered by the police and the county. Without this lawsuit, we’ll never know.”
Doug Ostling, 43, was killed after police responded to a 911 call he made that was described by the dispatcher as an agitated male yelling unintelligible, aggressive statements during the call. Ostling had been diagnosed as suffering from schizophrenia while a young adult and was known to Bainbridge police as someone who was mentally ill because of previous trips to his home.
Photos courtesy of Kitsap County Sheriff's Department
The Ostling family home on Springridge Road after the fatal police shooting of Douglas Ostling on Oct. 26, 2010. The staircase in the back of the garage leads to the studio apartment where the shooting occurred.
Officers Benkert and David Portrey were alerted and arrived within 20 minutes of the call. Bill Ostling told the officers that it was possible that his son, who lived in a studio above a garage attached to the family home on Springridge Road, had made the call because he had a phone in his apartment.
With a key to the apartment's door, Bill Ostling accompanied the officers, who initially tried to talk to Doug through the door. According to the complaint, "Doug told the officers he was OK and instructed them to leave." The officers told Bill Ostling to wait at the bottom of the stairs and then used the key to attempt opening the door. This is where the police and family accounts of what happened next are different.
A report made following the shooting by the Kitsap County Sheriff's Department, which was the basis of county Prosecuting Attorney Russell Hauge's decision not to file criminal charges against Benkert, claimed that when Ostling opened the door he was holding a double-bitted ax over his head while standing just inside of the doorway.
The sheriff’s report said both officers pulled their weapons and ordered Ostling to drop the ax. When he failed to respond, Portrey holstered his handgun and fired two Taser probes, only one of which made “solid contact.” Portrey stepped backward on the landing outside the door when Ostling remained aggressive, the report said, then fell on his back
The stairs leading to Douglas Ostling's apartment, as photographed from the doorway.
Benkert, who was standing on steps near the landing Portrey was on, responded by firing three rounds from his weapon. One lodged in the door, another hit Ostling in the foot, exited and also lodged in the door, while the third struck Ostling in the upper thigh and severed his femoral artery.
Joyce and Bill Ostling, through their daughter, Tami, have claimed that Doug wasn't holding an ax and he was shot through the door as he was closing it.
According to the lawsuit: "Doug was startled by the intrusion into his apartment, and he moved towards the door in order to close it and prevent the officers from coming in. One of the officers noted the presence of an ax that Doug used to chop firewood, and the officers deployed their weapons. ...As Doug came to the door and began to close it, Officer Benkert panicked and repeatedly discharged his firearm through the door, striking Doug (who was standing behind the door) in the leg. The two officers then scampered down the stairs and called for back-up."
Bainbridge Police Officer Walt Berg said in his written account for the county sheriff’s investigative report that he arrived at the scene about five minutes after the shooting and found Portrey and Benkert standing at the bottom of the stairwell with guns drawn.
“Officer Benkert told me that they had attempted to tase the male and that he had fought through the taser application. He said the male then came at them with a double-bladed ax and that he had fired three rounds at him. He said the male had barricaded himself in the loft. He was unsure whether the rounds had hit the subject, who he identified as Douglas Ostling.”
Berg also said both officers “were wanting to gain entry into the loft to check on Ostling, but I told them to stand-by for additional units to arrive. I also told them that Lt. Jensen and Chief Fehlman had been advised and were en route.”
The Ostlings had asked for a reopening of the investigation after Hauge's report was made, taking exception to the county's official statement of the event and the fact the police had left Ostling to bleed to death after being shot. Hauge responded to Tami Ostling's written request by saying the sheriff's report was accurate and that there were no "false statements or a cover-up" as she had claimed.
Portrey's explanation of the event was included in the Sheriff's Department findings, but Benkert has declined to be interviewed or to make a written statement.
Contact Bainbridge Island Review Editor Brian Kelly at firstname.lastname@example.org or 1-206-842-6613.