Federal judge rules that Ostling had clear right to medical aid in police shooting case

A federal judge has rejected the city of Bainbridge Island's attempt to have the lawsuit dismissed in the police shooting of Doug Ostling.

It was a split decision, however, as the city's attorneys in the case were able to remove claims from the civil rights lawsuit brought on an individual level by Ostling's mother, father and sister.

U.S. District Judge Ronald Leighton also questioned the family's allegations that better training for police officers would have prevented the death of Ostling, who was shot after officers responded to a 911 call at his family's home on Oct. 26, 2010.

Still, the ruling represented a victory for the Ostling family, who will be able to ask a jury to consider whether it was reasonable for police to deny medical aid to Ostling after he was shot by a Bainbridge Island officer and bled to death while police waited outside his apartment door.

The trial is scheduled to begin Monday, May 14 in U.S. Western District Court of Washington in Tacoma.

The lawsuit was filed by the Ostling family last year against the city, Police Chief Jon Fehlman and Jeff Benkert, the police officer who fatally shot Ostling.

The family alleges that Benkert’s use of excessive force led to Ostling’s death and violated the Ostling family’s constitutional rights.

Attorneys for the city had asked the court for a summary judgement on the lawsuit earlier this year.

Lawyers for Bainbridge Island said that Ostlings' family could not make Fourth Amendment claims on the use of excessive force because they were not financially dependent on Doug Ostling, and that claims made under the 14th Amendment should also be dismissed.

Police were called to William and Joyce Ostling's home on Spring Ridge Road after Doug Ostling made a 911 call that the judge described as "rambling" and "quixotic."

Ostling, 43, suffered from schizophrenia or Asperger's syndrome, and officers were told by his father when they arrived after the 911 call that his son had likely made the call and was mentally ill.

William Ostling then led offers through the house, into the garage and up a staircase to his son's apartment.

When Doug Ostling wouldn't answer his father, William Ostling was afraid he might have hurt himself. Police Officer David Portrey knocked on the apartment door and announced that police were there.

The judge noted that the accounts from both sides then diverged; an important factor, since lawsuits are dismissed on summary judgement when the facts are not in dispute and a decision can be made without a trial.

The accounts of what happened after police knocked on Ostling's apartment door, the judge said, were not in sync.

Ostling's father said Officer Benkert tried to open the door, couldn't at first, probably because his son was on the other side, holding the knob, but then got the door open and looked around the partially open door.

William Ostling then said he heard Benkert say, "double-bladed axe ... taser."

Portrey then holstered his gun, removed his taser, and fired it at Doug Ostling.

William Ostling said the officer then took a step back and stumbled slightly, catching himself on the wall.

Ostling said he then heard Benkert say, "Stop or I'll shoot," and three shots were fired.

The sounds ran right together, Ostling said.

"It was: Stop or I'll shoot POP POP POP," according to a declaration Ostling made in the court case.

According to Benkert's description of what happened, Portrey called to Doug Ostling through the door and asked him if he had called 911. Ostling asked them to go away.

The officers then got a key to the door from his father, but while Portrey was trying to find the right key for the lock, the door opened and Benkert said Ostling was holding a double-bitted axe in a striking position, a few feet away from Portrey.

When they pulled their weapons, Benkert yelled at him to drop the ax or he would be shot.

In a low voice, Benkert asked Portrey to use his taser, and he did, but Ostling wasn't incapacitated.

Portrey backed off, and Benkert said he kept his eyes on Ostling as his fellow officer backed away, then he thought he heard the other officer fall on the stairs. Benkert said Ostling came forward with the raised axe and the officer yelled for him to drop the weapon; he didn't, and Benkert fired three rapid shots.

After the first shot, Ostling was able to close the door.

One of the key facts, the judge noted in this week's decision, was that Benkert said he did not see any of his shots hit Ostling, or hear him yell in pain.

"While paramedics arrived within nine minutes of the shooting, no one rendered aid until approximately 10:20 p.m. — one hour and 20 minutes after the shooting," Leighton said in his decision.

Ostling had been hit in the femoral artery and had bled to death by that time, the judge said.

During that same time period, police cordoned off the room, called in SWAT officers, and stopped Ostling's father from using a ladder to check on his son through a skylight.

Leighton recounted the expert testimony from Dr. Richard O. Cummins, a University of Washington professor of emergency medicine, who said medics would have been able to save Ostling if they had gotten access to the shooting victim  within 16 minutes of their arrival.

Those two events — the shooting and the rendering of aid — were the basis of the claims made under the Fourth and 14th Amendments, Leighton said.

The Ostling family said their Fourth Amendments rights had been violated because of the use of excessive force, and that their due process rights under the 14th Amendment had also been violated. The family also said the city of Bainbridge Island and its police chief were liable for failing to train officers to deal with the mentally ill.

In his decision, Leighton said Ostling's father could seek damages for pain and suffering as the representative of his son's estate, but the victim's mother and sister could not.

The judge also dismissed his sister's claim that her due process rights were violated, noting that the court has rejected similar claims brought by siblings and not parents.

On the issue of the use of excessive force, Leighton said the issue would have to be settled at trial.

The family "presented testimony indicating that the officers forced their way into Douglas’s room without a warrant, an indication of a crime, or any other emergency circumstance.

"Perhaps more importantly, [the family claimed] that Douglas was far enough into the room that Officer Benkert had to peer into the room to find him and then calmly request that Portrey use a taser. The court cannot determine as a matter of law that it was reasonable to tase a mentally-ill man who had committed no crime when the officers might simply have backed away from the encounter," Leighton said.

The city's attorneys had said the officers had qualified immunity in the shooting incident, and that holding officers liable for reasonable mistakes would paralyze their ability to make difficult decisions in other situations.

Leighton said the evidence in a summary judgement motion had to be viewed in favor of the family. That meant denying the city's push to have the use of excessive force issue dropped from the lawsuit.

"The court must conclude if the situation was as calm as William [Ostling] 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 [Ostling] was shot through a door closing in the faces of the officers — the use of deadly force would be clearly unreasonable," the judge wrote.

The court also rejected the city's argument that restricting medical care to Douglas Ostling was reasonable under the law.

A "reasonable fact finder," Leighton said, could conclude that restricting medical aid to Ostling led to his death.

"Officer Benkert knew he had struck Douglas with at least one shot and had told Chief Fehlman so ... and that officers could have checked on Douglas [Ostling] by using a ladder to look through a skylight," the judge wrote.

Leighton recalled that police did not allow the victim's father to use a ladder to look through the skylight.

"But officers used exactly that option — the ladder — over an hour later. Defendants fail to explain what changed in that time to render the use of a ladder too dangerous in the first half-hour but safe an hour-and-a-half later," he wrote.

The judge also noted that the case used by the city to claim that medical aid could be delayed because of safety concerns — Alford v. Humboldt County — involved a mentally ill man who had broken into a friend's home, was acting bizarre, and told those at the home that he had “slit a person’s throat and he felt evil." He also pulled out two butter knives when officers arrived, then went back into the house and grabbed a rifle, then "dry fired" at officers. Other weapons were in the home, including assault rifles, and the man twice shot at officers. When tear gas was used, and the home caught fire, firefighters and officers didn't go inside for fear of exploding ammunition.

"In contrast, there is no argument that Douglas was armed with a firearm, and ... there was little or no risk involved in investigating [Douglas Ostling’s] status through the skylight," Leighton ruled, and the right to medical aid was "clearly established."

Leighton said the family's claims against the police chief and the city for failing to properly train officers were not so clear-cut. The judge characterized them as "tenuous," but said he could not make a decision on summary judgement.

Leighton also said the family had not presented any evidence that showed the city had ratified — and was therefore liable — for the alleged violations of the family's constitutional rights.



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