Bainbridge lawyers ask for new trial over Ostling shooting

Attorneys for the city of Bainbridge Island have asked for a new trial in the police shooting of a mentally ill Bainbridge Island man.

A jury in the federal civil rights trial awarded the family of Douglas Ostling and his estate $1 million after the close of the three-week trial earlier this month, and said the Bainbridge Police Department had not adequately trained its officers and the Ostling family's civil rights had been violated because the killing had severed the relationship between Ostling and his parents. Ostling was shot by police after he confronted officers with a double-bladed ax after they came to his family's home to investigate a 911 call.

The city's lawyers have asked U.S. District Court Judge Ronald Leighton to put the jury's decision on hold, and said the jury also made a mistake when it decided in favor of the family.

In a motion filed late last week in federal court, the city's attorneys also said the court erred when it refused to split the court case into two parts so Bainbridge Police Chief Jon Fehlman could testify in his defense.

Fehlman, who was named in the lawsuit along with the city and Jeff Benkert, the Bainbridge police officer who fired the shots that killed Ostling, did not appear in court during the trial. He was taken to the hospital the Sunday before the trial started with pancreatitis.

During the trial, Fehlman was heavily medicated "to combat the severe pain he faced in his fight against pancreatitis and a heart anomaly," the city's lawyers said, and was unable to assist in his defense.

"While being maligned at trial, Chief Fehlman was in varying states of unconsciousness or quasi-consciousness, unable to communicate, and ordered by his doctors not to read email or text messages," the city's attorneys said in last week's court filing.

Fehlman was medically incapacitated during the trial, according to court documents, and had undergone two heart surgeries during the trial for a heart anomaly, as well as continuing to battle against life-threatening pancreatic failure.

The city's lawyers said the verdict would end Fehlman's 27-year career in law enforcement, and the portion of the trial that dealt with claims that Fehlman had inadequately trained officers in the police department should have been delayed until he was able to testify.

"Chief Fehlman was confined to bed rest under doctor’s orders and so heavily medicated as to be unable to communicate with defense counsel or even receive messages from them regarding the status of trial," the city's attorneys said in their motion for a new trial.

"Had Chief Fehlman been allowed to speak at trial, the jury would have learned about Chief Fehlman as the leader of the city’s police force, his training of city officers, and received a portrait of a man who is dedicated to public service and compassionate toward the mentally-ill, not deliberately indifferent to their rights," the attorneys added.

Bainbridge's legal team said the verdict was "internally invalid and inconsistent" because the jury ruled in favor of the Ostling family without finding that the city had violated the family's constitutional rights.

The verdict itself was a split decisions, as the jury had decided that the shooting was justified, and that medical aid had not been withheld from Ostling after he was shot.

The city's lawyers noted that during the trial they had "produced uncontested evidence Officer Benkert received substantial training in dealing with the mentally ill ... Officer Benkert testified to his extensive training in de-escalation and years of professional experience in dealing with mentally ill persons."

The attorneys also noted the judge's comments during the trial that questioned the premise that police were wrong to immediately contact Ostling to find out why 911 had been called.

The Ostlings' lawyers "ideal police practice (i.e., walk away from a 911 call and conduct an investigation into the caller's mental health history) is wholly unreasonable in the light of the dangers police officers face," the city's legal defense team said.

They also recalled the judge's comments on the matter that were made outside of the presence of the jury.

"You are going to establish some really, really bad law here that is going to kill officers in the future," the lawyers said, quoting the comments of the judge during the trial.

The attorneys also said a last-minute change in the jury instructions allowed the jury to reach an invalid verdict.

"The jury issued a verdict absolving Officer Benkert of any unconstitutional wrongdoing but found Chief Fehlman and the city liable for failure to train," the city's attorneys noted in their filing last week.

"The jury found Officer Benkert: (1) did not unreasonably search the room; (2) used reasonable force; and (3) reasonably rendered aid," the attorneys said.

The jury then found that Fehlman had violated the family's rights by failing to train Bainbridge officers, and awarded the family $1 million.

The city's lawyers said the jury couldn't decide the case against the city without first finding that the breakdown in police training had involved Benkert, the officer who shot Ostling.

"Without finding Officer Benkert violated Douglas Ostling's constitutional rights, Chief Fehlman and the city cannot be liable," the lawyers said.

The court is expected to consider the request for a new trial on June 29, and take up the city's complaint on the flawed jury instructions on July 6.


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