Internal report clears police officers in Ostling case
By BRIAN KELLY
Bainbridge Island Review Editor
July 7, 2011 · 4:27 PM
An administrative review by the Bainbridge Island Police Department of the fatal shooting of Douglas Ostling last October by one of its officers has cleared the department of violating any policy or procedures involving the incident.
The author of the review was Bainbridge Cmdr. Sue Shultz, and it was supported by Fehlman and Interim City Manager Brenda Bauer when released Thursday. The review also said the city and the department supports the Kitsap County Sheriff’s investigation and the review late last year by Kitsap County Prosecutor Russ Hauge.
The city, Police Chief Jon Fehlman and Jeff Benkert, the officer who fired the bullets that killed Ostling, are all named in a civil lawsuit the Ostling family filed in March in U.S. Western District Court of Washington. The federal lawsuit claims Benkert’s use of excessive force led to Ostling’s death and violated the family’s constitutional rights – citing the Fourth and 14th amendments to the U.S. Constitution.
Tacoma attorney Jack Connelly said the report underscores the problem of law enforcement “not following departmental procedures from the outset involving incidents like this. This one is a whitewash.”
“It is clear what the city is attempting to do, which is to come up with a story and then tailor it for the lawsuit rather than provide a coherent explanation of what actually occurred,” he continued. “There are so many inconsistencies in the report that they end up hanging themselves with this latest attempt.”
The federal lawsuit, which is still in evidence-gathering stage by the complainants, charges, among other things, that the city and Fehlman violated the family’s constitutional rights by failing to train the department’s officers to deal “with citizens in psychological and/or mental distress” and “the use of de-escalation techniques, non-lethal tactics [Tasers] and the decision-making process that should accompany use of lethal force.”
Ostling, 43, who had been diagnosed as suffering from schizophrenia and paranoid delusions, was wounded by two of the three bullets fired by Benkert and then bled to death from a leg wound in his apartment on Oct. 26, 2010. Benkert and fellow officer David Portrey had responded to the Ostling family residence after a 911 call from a man the dispatcher said may have been in a state of “excited delirium.”
After being shot, Ostling was left unattended for 75 minutes despite the family’s request that emergency aid be called. The police review said Ostling was standing in the doorway when shot, then retreated behind a closed door.
The review said Benkert requested emergency aid “to stand by” as he was unsure if the man had been shot. Connelly said the officers didn’t know if Ostling had been shot “because the officer fired through a closed door.” The Sheriff’s Department report said Ostling was in the act of closing the door when he was shot and that two bullets lodged in the door – one after exiting Ostling’s foot.
The internal review differs from previous information released by city and county law enforcement, specifically in how Ostling was holding the axe when he made initial contact with police officers.
It also said that it took BIPD three months to do investigative interviews with the involved officers, contrary to department regulations that say “officers using deadly force must submit to an investigative interview within 24 hours of the incident.” Portrey’s statements to county Sheriff’s Department investigators were included in the county report, but nothing from Benkert was included.
Initially, the police department claimed that when Ostling opened the door, he was holding an axe raised high above his head. The latest report, however, states that Ostling was in “an angled or fishing stance with both hands on the axe and his hips in a manner used to deliver or strike a blow with the blade slightly above his right shoulder.”
Connelly said Thursday “that they’re just changing their story about the axe because they know they exaggerated by saying he was flailing it over his head and all that – just trying to justify their conduct at the time.”
According to an incident summary in the Bainbridge report, the officers were dispatched to the Springridge Road residence of William and Joyce Ostling after a 911 call from Douglas Ostling, who was yelling mostly unintelligible statements. Shultz later said that because of previous incidents the department was aware that Ostling suffered from mental illness.
Upon arrival, the officers contacted William Ostling, who took them to the studio apartment above the garage. The apartment is at the top of narrow U-shaped staircase, which leads to a landing with a 180-degree turn with two steps and another landing to the apartment door.
After William failed to get the attention of his son, the report said, he left to get a key for the locked door. While William was gone, and Portrey knocked on the door, announced himself and asked Douglas to allow the officers to verify he was OK. Douglas reportedly responded by saying “Get off my property.”
After William Ostling returned, according to the report, Portrey was attempting to open the door when he felt the knob turn and “rapidly open to expose Douglas, who was standing approximately two to three feet back from the door holding a full-sized, double-bladed axe.”
The officers, who had drawn their handguns and retreated slightly, stated that Ostling was “in a position of advantage and prepared to deliver a blow with the axe.”
Fehlman also said the day after the shooting that officers had initially made contact with Ostling outside the garage and had charged the officers more than once before retreating to his apartment. Neither the discrepancies about the axe or Fehlman’s statement about a fracas in front of the garage were noted in the report released this week.
According to the review, the officers had told Ostling to drop the axe, and reported that he was “staring right through” them and ignoring commands.
Officer Benkert then told Portrey to use his Taser, which successfully deployed but did not penetrate the clothing enough to make a skin-to-skin circuit with Ostling, who screamed, but did not go to the floor or drop the axe; a second, shorter activation was deployed and also failed.
Portrey said Ostling began to take short steps toward him with a “wild look” and the officer subsequently lost his footing, falling to his back and dropping the Taser.
The report said Ostling continued to advance with the axe in striking position when Benkert responded by firing his gun three times.
After the shooting, the officers went to the bottom of stairs and called for back-up.
They returned to the door but said there was no response to verbal calls and no sound was heard from inside the room.
The officers asked William to get a ladder so they could check on Douglas’ status, but then decided that a skylight on the roof was deemed unsafe for tactical purposes.
Contact Bainbridge Island Review Editor Brian Kelly at email@example.com or 1-206-842-6613.