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Attorney asks jury to send a message with Ostling verdict

TACOMA — After 11 days of trial and testimony, the jury in the Ostling family’s civil rights case gathered for their first full day of deliberations Thursday to decide whether a Bainbridge Island officer was justified in shooting a mentally ill man who confronted police with an ax in October 2010.

Officer Jeff Benkert shot and killed Douglas Ostling after police came to the Ostling family’s home to investigate a 911 call and Ostling, 43, met officers at the doorway of his room above the family’s garage with a double-bladed ax in his hands.

His parents, William and Joyce Ostling, filed a federal lawsuit against Benkert, the city of Bainbridge Island and Police Chief Jon Fehlman, claiming that Benkert had unlawfully searched Ostling’s apartment, used excessive force in the moments that followed and failed to offer aid after Ostling was shot.

The eight-member jury began to sort out two very different depictions of Ostling; a beloved and bright son afflicted later in life with a mental illness that defied an easy description, and a paranoid schizophrenic with a history of violence who threatened police officers with a deadly weapon.

There were also two terribly distinct versions of what the case itself was about.

Nathan Roberts, an attorney for the Ostling family, said it was about justice for a family who had lost a son in a tragedy prompted by a police department that had failed to train its officers to deal with the mentally ill, and a department rife with dishonesty that tried to cover its own tracks after the fatal shooting.

Lawyers for the city, led by Stewart Estes, turned Roberts’ own case and comments against him.

Roberts had said that the lawsuit was about sending a message to the community, but Estes said that message was wrong.

The other side wanted “lawyer-based policing,” Estes said, where officers wouldn’t investigate emergency calls and check on the welfare of those who had dialed 911.

Police problems

Lawyers from both sides presented their closing arguments in the trial Wednesday.

Roberts asked the eight jurors to present a verdict that spoke to the truth of the case.

The lawsuit was not a people-versus-police case, he said.

Rather, it was about what it means for a police department to properly train its officers, and whether citizens are entitled to medical aid after they have been injured by police.

Citizens don’t have a choice on who will arrive to help when 911 is called, Roberts added. There are good officers, ones who aren’t “hot-headed,” he said, and good police departments — ones committed to protecting and serving the public.

“Sadly, the Bainbridge Island Police Department is not one of those departments,” Roberts said.

The department has a deep-rooted problem, he said.

“Instead of protecting and serving the public they are focused on protecting and serving themselves,” Roberts said.

Roberts said the case was important to the Ostling family, but important to the community, as well. He detailed how officers failed to follow their department’s General Orders Manual.

“This case involves a police department that wasn’t using its owner’s manual,” he said.

It began soon after Benkert and fellow Bainbridge Officer David Portrey arrived at the Ostling home the night of Oct. 26, 2010 and asked about a 911 call police had received from the home.

When told that the call probably came from William Ostling’s son, and that Douglas Ostling was mentally ill, officers didn’t press to get more information about the man before following his father up a narrow stairway to his apartment.

“The police officers don’t ask a single question. Not one,” Roberts said.

Roberts then offered a scenario different than the one laid out by the detectives that investigated the homicide. Roberts said police opened the apartment door, and when Doug Ostling approached, it was only to close the door, and not to attack the officers with an ax.

“He was scared, he was mentally ill. He didn’t believe these were real police,” Roberts said.

Authorities have long maintained that Ostling was upset well before police arrived — the 911 call where Ostling screamed at a dispatcher with nonsensical questions was played repeatedly at high volume during the trial — and that he refused repeated demands to drop the ax after he met officers at his door.

Roberts disputed the officers’ account of how Ostling was holding the ax, and noted it wasn’t found in his hands when he was found dead, but underneath his body.

Ostling was shot just minutes after police arrived at the home and went up the stairway to his apartment.

“When Officer Benkert panicked and opened fire, he didn’t know what he was shooting at,” Roberts said.

What followed, Roberts recalled, was an agonizing hour-and-15-minute wait, with Ostling on one side of the door bleeding to death, and his parents frantically trying to get officers to check on their son, or at least give them the chance.

They were repeatedly told no, Roberts said.

And when William Ostling grabbed a ladder to look through a skylight into the apartment, he was also stopped by police.

“He’s told no, you can’t do that, either,” Roberts said.

Seventy five minutes later, police used the same ladder to get onto the roof.

“We know that was too little, too late. The person inside the apartment, Doug Ostling, had bled to death in the interim,” he said.

Manual ignored

Roberts said the officers’ failure to follow their own manual was probably the most important part of the case.

Officers also need to be trained with the manual in mind. Putting police on the street without that, he said, was the same as sending them out in a car with no brakes, a radio with no batteries, or a gun with no bullets.

Things would be different if officers were properly trained, and they had given medical aid when it was needed.

“We wouldn’t be here. Doug Ostling would be,” Roberts said.

The Bainbridge Police manual, he said, guides how officers should deal with the mentally ill.

The two officers didn’t calm the situation, he said, they made it worse by trying to get into Ostling’s apartment. The officers should have gotten more information about Ostling — his past history, the nature of his mental illness, how his parents dealt with him when he was upset — from his parents before they went up the stairs, he said.

There was no rush, he added. It was a Tuesday night on Bainbridge Island, and nothing was going on. There was no reason why they had to get into his apartment within five minutes after arriving at the family home.

Roberts said a paramedic had made it to Spring Ridge Road nine minutes after the shooting, but was left to wait.

No one was in charge of the scene for 25 minutes, and Bainbridge Island officers were running around like chickens with their heads cut off, he said.

Dishonesty alleged

He asked the jury to look very closely at the police decision to wait until a SWAT team had arrived before letting a paramedic into Ostling’s room, or if that was just an excuse that had been conjured up for the trial.

Roberts said the police department wasn’t being honest with the public or the jury.

“They had a choice. They came to a fork in the road,” he said.

Rather than go the right way, and accept responsibility for a mistake and tell the truth, police decided to go the other way instead.

Police decided to fabricate a story that made them look like heros. It was also one that would make Ostling look like “ax-wielding maniac,” Roberts said.

Bainbridge officers deal with people who have mental issues about twice a week, Roberts said, but officers were not given regular training on how to deal with the mentally ill.

“Their response was to sweep the incident under the rug and take no steps to correct this problem,” he said.

Roberts said officials had offered four different versions of the incident, starting with a “wildly inaccurate” press conference with the police chief that was filled with falsehoods.

That first version had Ostling walking toward police officers not at the top of the stairwell, but outside the garage, with Ostling raising an ax above his head.

Their story on how Ostling was holding the ax had also changed, he said.

And Portrey’s account of falling on the stairs as Ostling came forward with the ax didn’t jibe with the diagram included in the investigation report by the Kitsap County Sheriff’s Office, and Roberts also noted that William Ostling never saw Portrey trip and fall.

The rounds that were recovered, he added, were never sent to the Washington State Patrol crime lab for analysis.

The telltale door

The strongest evidence in the case was the door, Roberts said, adding that Ostling was behind the door, and not attacking the officers, when shots were fired.

“Unlike people, ballistics don’t lie, and they don’t forget,” he said. “They are what they are.”

The apartment door, he said, showed that the bullets had struck the door first before they hit Ostling.

Ostling wasn’t holding the ax as police said, Roberts said, but had actually been closing the door with one hand as he was shot.

He said police had a litany of excuses for not going up on the roof to check on Ostling after he was shot, including that they had to wait for the SWAT team and were worried about the possibility of a firearm in the apartment that could be used to shoot at someone on the roof.

Ostling hadn’t owned a hunting rifle in almost 10 years, Robert said.

Roberts also said police weren’t being honest about Ostling’s injuries, and he wouldn’t have died as quickly as the defense claimed.

He recalled the expert hired by the family, Dr. Richard Cummings, a researcher and professor of emergency medicine at the University of Washington School of Medicine, who said that if Ostling had gotten medical help within 25 minutes of the shooting, he would still be alive.

That conflicted with the $750-an-hour expert hired by the defense, Roberts noted, who said Ostling would have lived just 10 minutes or so before bleeding to death.

That was a convenient story, Roberts said, given that a paramedic didn’t arrive at the scene until nine minutes after the shooting and the city’s medical expert said he needed to be there within five minutes to save Ostling’s life.

“Is that doctor being honest?” Roberts asked.

The city wasn’t being truthful about Ostling, either, Roberts said, and had suggested “he was an ax-wielding murderer waiting to happen.”

Roberts showed the jury a series of family photos that have become familiar during the trial: Doug Ostling on a walk with his mother in the woods with his beloved dog Bella; the family trip to Washington, D.C. to celebrate his birthday; standing in graduation cap and gown; the family gathered at William Ostling’s retirement party.

“He’s not a monster,” Roberts said. “This is not an ax-wielding murderer. He’s a treasured member of their family.”

Roberts wondered if police were making such insinuations so they would get “a free pass.”

It was also an attack on the family, he said, that their parenting was inadequate.

“I’ll tell you why that is offensive. This family worked so hard for their son,” he said.

They got him through college, bless them, Roberts said, and when he couldn’t find work, they got him a place of his own so he could live an independent life.

Later, when he left Bainbridge Island for California, they were successful in bringing him home after he had been living on the street.

“We need more families like Bill and Joyce Ostling,” the attorney said. “This is a family that worked extraordinarily hard.”

A just amount

Roberts showed family photos again when it came time to talk about damages, and the dollar amount that should be set if the jury agreed that Ostling and the family’s civil rights had been violated.

Doug was a smart, inquisitive child, with a legendary love of bicycles, the outdoors, his sisters.

His parents loved him unconditionally, good times and bad, and now, those special parent-child bonds — between a father and his son, a mother and her first-born — were broken.

Those are the damages, he said, but at what cost?

He noted the grand courthouse around them, recalling the judge’s praise of the $65 million remodeling effort of Union Station during an earlier lull in the trial.

It’s easy to appraise the value of objects, Roberts continued, noting that Edvard Munch’s famous painting, “The Scream,” had just sold at auction for $119.9 million, but he didn’t think it was attractive enough to hang in his apartment.

In this case, Roberts said, less than a million dollars wasn’t justice.

He offered a range of $1 million to $3 million, but noted that was a decision for the jurors.

“It’s not my sense of justice that matters. It’s yours,” Roberts said.

“Speak the truth with your verdict,” he said.

A differing view

Estes, the attorney leading the city’s defense against the lawsuit, said the case was about a family who had lost a son not once but twice, first to mental illness, then, to death, and a “heinous accusation” against a police officer for violating the Constitution and taking a life.

It was also about money, Estes added.

The family’s attorneys had offered a case based on a tidal wave of emotion and sympathy, he said.

How many times were those family photos shown, Estes asked, adding that he had lost count.

The Ostlings were a great family that had endured many tragedies. That said, the jury had to set aside its sympathy as it considered the case, Estes told them.

“You may like the Ostling family. They are wonderful people. That’s not something that’s an issue in this case,” he said.

Estes noted that he’d been an attorney since 1985, and having to question the parents on the witness stand had made this case the most difficult one he’s ever had.

The parents testified early in the trial, and provided most of the most compelling and heart-wrenching testimony. Both William and Joyce Ostling were moved to tears when talking about their son, with Joyce Ostling vividly recalling the night of the shooting, but the couple’s testimony was tinged with anger and indignation when they were subject to cross-examination.

Estes asked the jury not to hold his questioning of the parents against him, as he had to defend his clients.

And he added that the jury wasn’t being asked to send a message to the community about the Bainbridge Police Department. They had to look at the evidence and facts to make up their minds.

“This is a tragedy. These are nice people. Doug died. We wish he hadn’t died,” Estes said.

The other side has the burden of proof in the lawsuit, Estes added, but the experts and the evidence they offered actually supported the city’s version of events.

Estes presented an extended slide show featuring 10 areas where the physical evidence from the shooting scene fit with the police version of events. Jurors repeatedly turned to small monitors in front of their chairs as they followed along.

By contrast, Estes said, the other side stuck with a single approach when characterizing the city’s defense.

“If you don’t like the evidence, you just call everybody a liar,” he said.

“Everybody’s a liar here,” he said, quickly running down the list of the Bainbridge and county law enforcement officers that had been called dishonest.

Estes turned back to the testimony offered by the other side.

William Ostling was in no position to see the things he said he’d seen from his position at the bottom of the narrow stairway, Estes said. And Estes recalled how Ostling had to change his story about what he was doing on the morning of the shooting when his wife later corrected him.

And what did jurors hear from the parents, Estes asked, besides arguments and speeches when the defense had sought answers?

Facts not in dispute

Estes then laid out the undisputed facts in the case.

Doug Ostling had called 911; he was upset the night of the shooting but wouldn’t talk to his family about why he was angry.

He met officers with an ax in his hand, and ignored 10 to 12 different commands from police to drop the ax and stop.

It was also undisputed that Ostling was about five feet away from Benkert when he was shot, and that the door was wide open when Benkert started firing his weapon.

“He did not search the room, he was not near the door,” Estes added.

Estes also said Ostling opened the door, not police, because it was clear that Benkert made an urgent radio call for an emergency when the door flung open.

It was William Ostling’s home, and it was his father who had let them inside, and to his son’s door. Estes recalled how William Ostling himself became worried when he knocked on his son’s door after being told of the 911 call, but got no answer.

The use of deadly force was reasonable, Estes said.

Jurors couldn’t try to “Monday morning quarterback” the case, he said, because the law requires them to consider if the use of force was reasonable from the perspective of an officer who was at the scene.

Other officers may have handled the situation differently, he said, in a nod to the testimony of former police officers hired as experts by the Ostling family who said they would have handled the call differently.

That wouldn’t make each approach unreasonable under the law, Estes noted.

For example, if somebody fertilizes his lawn differently than his neighbor, that wouldn’t automatically mean he was using an “unreasonable” approach.

“There’s a wide spectrum for reasonableness,” he said.

Officers are trained, he said, that anyone with a knife within 21 feet is a deadly threat; they can close the gap so quickly that officers cannot fire their weapons in defense.

Ostling wasn’t 20 feet away, Estes noted, but 5.

“There was no margin for error,” he said.

To suggest that officers provoked Ostling into threatening them with an ax was “ridiculous,” he said.

“It doesn’t pass the straight-face test,” Estes said. “There’s nothing in this case to suggest that Douglas was provoked.”

What was tragic, he said, was that Portrey’s attempt to disable Ostling by using a taser didn’t work.

The evidence showed one of the prongs hadn’t fully made contact with Ostling’s chest through his sweater.

Ostling struggled to wave off the taser prongs as Portrey had five seconds to handcuff him.

Ostling, however, did not fall to the floor as expected. Instead, he came forward with the ax.

Portrey stumbled backward, falling on his back on the staircase. The next thing he saw was the ceiling.

Benkert saw Ostling come toward the doorway, shifted his eyes to his gun sights, and fired.

“That’s the tragedy in this case. That Officer Portrey risked his life not to shoot, and the taser didn’t work,” Estes said.

Other evidence fits

The evidence showed the taser was fired while Portrey was standing in the doorway. There was also proof that the taser was activated for nine seconds, and not five, which was consistent with Portrey gripping tight the taser and extending its charge as he fell backward, Estes said.

There was a bruise on his shoulder, too, where the officer had fallen.

The family’s own expert, Estes noted, testified that the taser was fired by someone 5 to 7 feet away.

What’s more, the evidence didn’t show that Ostling was completely behind the door when the shots were fired.

“That door is being closed in a heartbeat,” Estes said.

The ballistic evidence showed that Ostling had the left part of his body moving forward, in a crouch like a linebacker ready to come off the line of scrimmage, when he was shot, Estes said.

That was consistent with someone coming forward in an “attack mode,” he said.

“He is not closing the door. He closed the door because he ran into it,” Estes offered.

On the claims of dishonesty by the police chief, Estes noted that the press conference was called within 12 hours of the shooting.

“This was a big deal,” he said, and the police chief used the information he had at the time.

True, some information wasn’t accurate, but not much, given the lengthy account that was shared with the press.

The chief had also turned the investigation over immediately to an outside agency, the Kitsap County Sheriff’s Office.

The Ostling family, meanwhile, had “lawyered up,” he said, and had threatened the city with a lawsuit within a week of the shooting.

Police expert scrutinized

Estes also poked at Van Blaricom, the former chief of police from Bellevue who had testified for the family and criticized Bainbridge for the shooting and said the officers were ill-trained to handle what had happened.

Blaricom had been an expert witness for 27 years, Estes said, and has made a career out of criticizing police officers in court cases.

“That’s all he does for a living.”

What’s more, Blaricom had never answered a 911 call during his time on the force because the system wasn’t even set up until after he retired, Estes said.

Benkert acted reasonably. He called for aid, radioed other officers for assistance, and in the minutes following the shooting, Estes said, officers checked the apartment door again and dispatchers called Ostling’s phone in his apartment, trying to reach him.

It wasn’t reasonable to send an officer up the ladder — wearing a vest that wouldn’t stop a knife blade, let alone a rifle shot — right after the shooting. Susan Peters, a former detective and police expert hired by the family, said police should have waited for six officers to be at the scene, Estes recalled.

No one was going to risk the lives of paramedics by having them go into a room with a barricaded subject, Estes said, until police had checked the room.

That finally happened at 9:27 p.m. By that time, even according to the family’s medical expert, Estes said, Ostling had already passed away.

Death came quickly

As he had earlier in the trial, Estes countered the notion that giving Ostling medical aid almost immediately after the shooting would have saved his life.

Dr. Seth Izenberg, an expert witness for the city, said a medic would have needed to be at Ostling’s side with a tourniquet just minutes after the shots were fired; 10 minutes after the shooting, he would have bled to death.

Estes dismissed Roberts’ recounting of how Izenberg had saved the lives of gunshot victims who had similar wounds as a surgeon in Mobile, Ala.

That’s a city where an ambulance can be on the scene in two to three minutes, Estes said.

“We’re a rural area. It’s not downtown Mobile,” he said.

Estes also recounted how another expert — Peters, who had been hired by the Ostling family — had said the officers’ approach that night was reasonable.

Peters herself only had three years of patrol experience, well below that of the officers involved in the Ostling shooting, Estes said, and her former department in King County has a mandatory policy that requires officers to investigate 911 calls.

He recalled a 2007 case in King County, in Carnation, where an officer went to the scene of a 911 call but never went past the gate. A neighbor reported nothing unusual, and law enforcement left.

“Five bodies were found in that house,” Estes said.

Benkert had more police training than Peters, he said.

This case didn’t call for a detective, Estes added, and he flashed a familiar figure before the jury when he recounted how many 911 calls the family’s top two experts had been called out on.

“Zero. That’s the number of 911 calls that the plaintiff’s experts have responded to,” Estes said.

He also recalled Peters’ reaction earlier in the trial, where Estes, holding Doug Ostling’s ax, stood before the jury box in a dramatic recreation of the space between Ostling and the officers, with Peters taking the place of Benkert.

Estes had lurched forward, toward the detective, and asked if she would have fired. She said no.

“She wouldn’t shoot someone who was going to put an ax in her head,” he told the jury.

The Bainbridge department was being criticized for a lack of training for its officers, he added, but he pointed out that police officer training is standardized across the state. It’s not the city that trains each officer; they are sent to a police academy instead.

The “very carefully tailored questions” by lawyers on the other side had obscured that, he said.

The other side, Estes claimed, wants to change how police do their jobs in Washington state.

Under that approach, police responding to a 911 call could be told at the door that everything was fine and then leave.

But what if it was a domestic violence call, Estes supposed, and the husband had grabbed the phone from his wife after she’d been beaten to a pulp and called for help.

The husband meets officers at the door, and offers to check on his wife in back while making the officers wait at the door, only to return a few minutes later with the report that everything’s OK.

Estes turned slightly to the opposing lawyers.

“They want officers to stop doing their jobs at the door and rely on third parties to say, ‘I’ll investigate for you,’” Estes said.

“This is lawyer-based policing,” Estes added. “If you render these officers liable, they won’t be doing these welfare checks.”

Constitutional rights

Estes also attacked the importance of the police manual in the case.

“The manual, the manual, the manual. All we have heard about is the manual,” Estes said. “They want to beat us over the head with the manual.”

The policy in the manual requiring officers to submit to an interview within 24 hours of a deadly force incident, however, had practical boundaries.

Estes recalled that a homicide investigation was launched the night of the shooting, and Benkert was the focus.

The Constitution carries more heft than the police manual, and Benkert was entitled to his Fifth Amendment rights against self-incrimination.

The message to send

If there was any message to send in the case, Estes said, it was that people who are diagnosed as paranoid schizophrenics need treatment and medication. They don’t need alcohol and axes, he said.

Estes said the family had said in their lawsuit that their son wasn’t violent toward others and didn’t have a history of physical violence, but testimony from family members during the trial had shown that wasn’t the case.

The city’s lawyer referenced the time Ostling had gone to work for his father’s brother in Oregon, but was fired after he beat up a coworker; the time in California when he was arrested on pop singer Britney Spears’ front porch, after he had shown up on her property trying to get hired as a bodyguard.

Love is blind, and the family has an idolized view of their son. Their memories of their son are benign.

“Does it mean they’re lying? Of course not,” he said.

He recalled a comment made by Joyce Ostling during the trial: “I can believe anything I want.”

“She can remember those days,” Estes said, of her young son, before mental illness took him away.

The family would have told officers the same things about Doug Ostling if they had asked about him during the night of the shooting; he wasn’t violent, didn’t have weapons, that he’d been no trouble that evening.

The police manual offers guidance, Estes said, but there was nothing in there that said they had to follow policies that would violate a person’s constitutional rights.

“He has the same rights as anyone in this courtroom,” Estes said.

“Remove this cloud over this officer and don’t brand him as a violator of the Constitution,” Estes concluded.

Judge Ronald Leighton gave jurors a 25-page set of instructions to consider before reaching a verdict, and jurors are expected to continue deliberations each weekday until 5 p.m. until they reach a unanimous decision.

 

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