As Judge Leighton showed increasing impatience with the pace of the questioning, lawyers from both sides picked it up on Friday. Plaintiff’s attorney Nathan Roberts advised the judge that he expected to rest their case on Tuesday, and would be eliminating several witnesses previously scheduled to testify. Lawyers seemed more prepared with their exhibits, and their questions were more focused.
Defense attorney Stewart Estes put on the legal performance of the day, conducting a skilled cross-examination of the plaintiff’s policing expert, Sue Peters. The drooping jury sat up straight and turned from Estes to Peters and back as if they were watching a tennis match.
Peters is a retired King County Sheriff’s detective, with 29 years’ experience in policing. She did three years of patrol in the 1980’s. In 1991, she became a homicide detective. She worked 15-20 homicides a year until she retired. She had a stint on the Green River Task Force with former Bainbridge Island Police Chief Matt Haney, with whom she is friends. She said she considered Haney to be committed to training and sensitive to the mentally ill.
Among her unit’s responsibilities was investigating officer involved shootings. Since retiring a year ago, she’s been a consultant and this trial is the first time she’s acted as a private consultant on a police case. She became involved in the case because knew Ms. Kays (who is a former prosecutor), and Kays asked her to review the Ostling investigation.
She said that based on her investigation, training and experience, it is her opinion that BIPD’s guidelines and practices were not followed the night of the shooting. She said that had the officers followed their own manual that night, Douglas Ostling would be alive today.
She focused her criticism of the officers on two factors: 1.) they had the luxury of time to gather information about Douglas from the family before they went up to his apartment to contact him, yet they did not do so; and 2) they did not obtain medical aid in a timely fashion. She also believed they conducted an unconstitutional, warrantless search by attempting to enter his apartment.
She said she’d never heard of a chief meeting with an officer involved in a shooting before he’d written up his report. Similarly, she’d never heard of an officer waiting two and a half months before making the report, adding that it’s important to write a report within a day or two, while the memory is fresh.
She stated that entry into Douglas’s apartment after the shooting could probably have been safely made with a minimum of four officers on scene, one on the roof looking in the skylight, one watching the front of the residence, and two covering the stairway to his apartment. She thought that if they’d followed proper procedures, they could have gotten aid to him within fifteen minutes. She noted that they were in a residence and the layout was simple and small, which indicated they did not need a SWAT team. Moreover, she didn’t think Douglas should have been characterized as a “barricaded subject.”
She did remark, however, that officers are trained that they should always assume there is a firearm in the house, and they shouldn’t rely on the parents’ statements about it. Nevertheless, the officers should have asked the Ostlings about firearms, she said.
Estes commenced his cross-examination by asking whether she had reviewed the relevant documents and was fairly comfortable with the facts. She answered that she was. He then asked her to confirm the following “undisputed facts”:
-Doug Ostling called 911.
-He was legally intoxicated for purposes of driving the night of the shooting.
-He’d been upset prior to the arrival of the officers and ignored attempts by his parents to communicate.
-He was a mentally ill adult male.
-He was wielding a double-bitted axe.
-No one knows how long he had the axe or what he intended to do with it.
-He ignored the officers’ warnings to drop the axe.
-The officers’ first attempt at non-lethal force was ineffective.
-They were less than five feet away from him when the shots were fired.
She agreed with all of those points, after rephrasing a couple of them to add detail.
She said a manual is “good police practice,” characterizing it as a resource and guide (just as Officer Portrey had testified). She also agreed that police manual policy can set a higher standard than that required by the Constitution and that even if the officers violated their manual, it wouldn’t necessarily mean they violated the Constitution (this is legally important because the plaintiff’s case is based on constitutional claims).
She admitted that inserting a key into a door is not a search.
She conceded that while four officers would have been the minimum required that night to go on the roof, six would have been better. Estes reminded her that she’d testified in her deposition that at “21:27” (9:29 p.m.) it would have been tactically safe to go on the roof and look through the skylight.
She was shown a photo of the upstairs bannister outside of Douglas’s room, which showed Taser wires wrapped on the outside of the rail. She said that indicated the Taser was fired by the front officer and that the lethal cover officer would not have been in front of the Tasing officer. She noted that officers only have five seconds to subdue the subject, so an officer wouldn’t want to fire from behind another officer.
Estes observed that she’d been a patrol officer only three years, and that was twenty-five years ago. She admitted she did not have as much patrol experience as either Portrey or Benkert. She agreed that homicide detectives are investigating a crime that has already occurred and have the “luxury of time” to do their work. She admitted patrol officers usually don’t have that luxury.
She agreed that King County has 800 officers, it is a progressive agency, and is committed to training but that in three decades on the job, the agency provided her with only one four-hour class and some online training on dealing with the mentally ill. She said police had just begun to focus on mental illness training in 2011, or maybe a few years before. King County did not have a Crisis Intervention Team until late 2010.
By 2009, the BIPD had 8 of its officers (38%) trained in crisis intervention, Estes said. Peters did not know any agency in the state with a higher percentage.
Estes reminded her that King County requires its officers to investigate all 911 hang-up calls. Deputies there were disciplined for not going farther than the gate at a residence which was the scene of a multiple homicide, on the word of the neighbors, who said they hadn’t heard any noise.
She said it comes down to the individual officer. Learning on the job is a significant part of training.
On re-direct, Peters reiterated some of her earlier points. Plaintiff’s lawyer showed her a different picture of the upstairs bannister and said it had been taken apart and reassembled the night of the shooting. When the proper number of railings were in a photo, it seemed to her that the Taser was fired from behind the cover officer. She also said, “This call shouldn’t have gone down in five minutes the way that it did.”
Estes rebutted by having her stand five feet from him, in front of the jury box. He pretended to hold the axe as officers testified Douglas did. Then he took a sudden step toward her, and asked if she would have shot. She said she would not have shot.
It’s likely every juror was asking him or herself the same question.
*Housekeeping note: The defense obtained permission for Chief Fehlman to attend trial next week in a wheelchair. They did not provide an update on his condition, or say when he would be in court.
The jurors, and even the reporter, might also ask themselves:
1. Do the Police Guild and the prosecutor know who thier family members are, where they live, thier jobs, police and credit histories?
2. What would their family, friends and neighbors do if they became the object of police surveillance, a “friendly” mental health check or code enforcement clouding their title with a “Dangerous Building Certificate” based on 911 tips from pay phones?
3. How many prosecutors “serve”, control directly or indirectly, the board of directors of the taxpayer funded risk pool’s substantial checkbook?
4. How many appearing and non-appearing law firms are consulting on this case; just who are these attorneys; who are they connected to; how much and what are they being paid for?
5. Win, lose or draw do the Ostlings continue to live in a house where they have
sufferred so much pain? Where do they go that the Police Guild and the prosecutor cannot find, intimidate and punish them?
Nice work, Althea. Again, no clear answers here that I can see yet.
Kenn–I run a tighter ship on the comments here than maybe some other places you’ve written on. I appreciate you reading and commenting, but you’ve thrown out a lot of bald speculation and suggestions of illegal and unconstitutional conduct without support of any kind. The only reason I posted the above comment is you have not necessarily smeared identifiable people. I will not post anything more of this nature.
Perhaps if you re-read Sullivan vs. the New York Times you wouldn’t be so intimidated and might investigate the situation beyond the surface more thoroughly yourself.
Why do you think the policeman brought his gun to the federal courthouse
check in when he clearly knew Judge Leighton would not allow it in the courtroom? A subliminal message to defenseless civilians or is it that dangerous walking from the parking lot to the front door all on heavily guarded federal property?
I think the most powerful and creditable witness to date for the plaintiffs this week was Dr. Richard Cummins (U/W Prof. of Emergency Medicine). He ended his plaintiff testimony with a powerful statement to the jury: “Doug Ostling was not given a chance.”
But he was talking only medical treatment, not a safe or logical Police Department response. That’s where it gets more complicated.
His testimony (said worst case situation, but I felt he was saying it was his best estimate): Given Doug Ostling’s two gunshot wounds, Doug Ostling would have lost consciousness at about 5 minutes. He would begin to have brain damage from lack of sufficient blood and oxygen at 20 minutes. His heart probably would have stopped around 25 minutes. Essentially, he could have been saved if medical aid was provided within 25 minutes. Dr. Cummins agreed that there are variables to this time … it’s not and never will be a precise science.
Plaintiff ‘s Police Expert Detective Sue Peters said she though it was safe to go on the roof when there were six officers on scene … defense noted that was at 9:27. (She also said they probably could have done it with 4 officers, but 6 would have made it safe considering the family was still in the house, outer loft door cover, etc.
I think the defense could argue that to put the ladder up in darkness onto a steep (45 degree) roof (I’m guessing they might try to light the area) and to have someone climb high on the roof (skylight is high … at the roofline) and observe what was going on in his room would probably take maybe 3-4 minutes at best.
Then, probably another minute or two to get first aid responders up the stairs and evaluating Doug’s condition … they would have to locate the wounds (the lethal wound was from a bullet that did not emerge, and that caused major internal bleeding) before knowing where to apply pressure to stop the bleeding from the damaged artery.
So this is maybe at very best 9:32 pm.
By Dr. Cummins timeline, Doug Ostling is probably deceased by that time. (Unconscious 9:04 pm, brain damage 9:14 pm, deceased 9:19. pm.)
So I think by combining the testimony from these two expert witnesses, this makes Officer Jenson’s decision to hold entry for a SWAT team entry virtually irrelevant.
4 minutes, 50 seconds. In my mind, that is the most critical fact in this incident. This was the amount of time, according to the Cencom logs, from arrival at the scene until shots were fired. Since Doug Ostling was inside his room and not, as was initially reported by Chief Fehlman, outside running toward the officers with an upraised axe, the officers had no exigent need to do anything. They were under no threat, and had no reason to perceive a threat (even assuming their version of the events is correct), until after actions were taken BY THEM in trying to enter Mr. Ostling’s room.
Before anybody starts thinking that I’m not sympathetic to the officers or that I’m being overly critical of the police department, consider this: I’ve been there. I’ve had a psychotic man, in his home, talking “crazy talk”, having called 911, pointing a loaded shotgun at me. I know exactly how the officers were feeling. In my case, the officer accompanying me was outside, where he should have been, until I called him in. The big reason that everybody walked away that day, safe and sound, was our training. This was in poor, rural East Texas, by the way, in 1978.
What the vast majority of people, including officers, fail to appreciate is the phenomenology of schizophrenia. Among its many effects, acute schizophrenia results in the inability of the person’s brain to properly filter and interpret sensory information. As you read this, you are probably thinking about the words and are quite likely not aware of the temperature of the room, whether a breeze is blowing outside, the taste of the beverage you drank, the pressure of the chair on your body, the memory of your last argument with someone, the position of your feet, the clothing on your skin, the dreams you had last night, and so on and so on. But, as I mentioned these things, you might have had at least a fleeting awareness of them, but then quickly returned your focus to these words. Now, imagine (if you can, and people without the disease probably can come nowhere close to what it’s really like), but try and imagine that you cannot control those awarenesses and all that sensory information, memories, and thoughts come flooding in, however they will, all at the same time, and you have NO control over them. You cannot stop them. Furthermore, they all get mixed up with each other so that you can’t tell what is a memory, what is a thought, and what is a current sensory perception (and, yes, those can include smells and tastes, too). If you think that would be a horribly frightening experience, you’re right. And, when people are having an acute episode of schizophrenia, that’s typically their most predominant state — abject terror.
This also goes to the biggest mistake most often made by people dealing in such situations — the failure to appreciate the state of the ill person and alter their own behavior in consideration of it. Most regular folks wouldn’t understand and would quite likely respond as most of us do when we don’t understand something so powerful and that would be with our own fear. Most of us humans respond to fear in one of two ways: fight, or flight. There’s no shame in that, we’re wired that way, it’s natural. But, that’s why training (and, good training!) is so, so critically important.
Proper training has been available for officers for many years. We did our own back in E. Texas and my group of mental health professionals and police officers was far from the first batch to go through it. On a large scale, Memphis (along with NAMI and the U of Tennessee) began systematically training big city police departments back in 1988. The model has been researched and refined over the years, to the point where we now know that the approach they use saves the lives of citizens and officers, while getting people the help they need. The training is now common. In fact, there are training officers here in Washington in several counties right next to us, and have been for quite awhile. What does it cost? Utah trained 550 officers for $95,000 ($175, each). Georgia does it for $250, each. Even allowing for $300 each for our city, that would be $6300 to train every officer on our force, for the full one-week, 40-hour NAMI training. In Washington, our own Washington Criminal Justice Training Commission also does the training, and even offers a $55 per hour backfill reimbursement to the agency! There is no excuse for not having all officers complete this training.
I have no idea how the trial will turn out. I think there’s a lot of sympathy in the community for the Ostlings and I’ve certainly heard plenty of folks express the hope that they will win, believing that it will force the city to make changes, albeit the hard way. But, I ask you instead — what if the city wins? What will we do then? Will we go on our merry way thinking that “all is good” with our police department? If you should have a family member in a mental health crisis, will you call our police department for help? Well, will you?
In the time it has taken you to read this, Officers Portrey and Benkert arrived on the scene, did their assessment, and shot Doug Ostling to death.
For the Ostlings, the official outcome is in the hands of the Court. For our community, the outcome is in our hands.
Richard Packard, Ph.D.
Clinical & Forensic Psychologist
http://www.memphispolice.org/Crisis%20Intervention.htm
http://www.nami.org/template.cfm?section=CIT2
https://fortress.wa.gov/cjtc/www/index.php?option=com_content&view=article&id=184&Itemid=190
I don’t want to be dominate this blog, but I think it’s important to understand that the two police officers that responded to the 911 hang -up call simply went to the Ostling’s residence, knocked on the door, and told Mr. Ostling that they were there to check on a 911 call that had been made from that address. Mr. Ostling wasn’t aware of any 911 call, so he said it might have come from my son who lives in a room above the garage. The three of them went into the garage and two up the stairwell towards Doug Ostling’s room, and when Mr. Ostling knocked on Doug’s door and called out to him, there was no response. The police officer asks Mr.Ostling if he had a key to the room, and he said yes and got the ring with three keys. The room key was inserted into the locked door, and right after that is when Doug Ostling opened the door with the raised double bladed axe.
The two officers don’t hear the 911 call … only the dispatcher hears that. To the officers, it’s a relatively routine welfare check to see if there is some emergency or some reason that someone made a 911 hang-up call. They knew the 911 caller was excited and didn’t seem to be making a lot of sense, but that isn’t a fact that they should not determine what the situation is with Doug, and if was he who made the 911 call.
I think Richard Packard, Ph.D., is doing what so many others have been doing … Monday morning quarterbacking. The 4 minutes and 50 seconds doesn’t seem to be a substantial issue inside the courtroom for either the plaintiff or the defense sides, but the trial is still ongoing. So far it seems to be simply a case of let’s go and see if Doug made the call. At this point, nobody knows if he is passed out, on drugs, intoxicated, asleep, .. .and they certainly didn’t anticipate he would open the door with an axe in hand.
Nobody knows how lay eight jurors who haven’t been influenced by the press and local opinionated advocates are going to decide this case, but both sides are aggressively presenting their respective cases, and the judge has been liberal in allowing both testimony and admission of evidence.
And this is a civil rights case. From a legal standpoint, what the Police Chief said at a press conference, which clearly wasn’t factually accurate, probably plays no bearing what-so-ever in determining if there were any constitutional violations for which the City would be held liable.
I think you may have missed my point, Mr. Dashiell. I’m not talking about the outcome of the court case, as that is beyond any of our abilities to influence. That will play out however it plays out. I’m talking about what we, as a community, end up doing about our police department’s capacity to appropriately respond to citizens who are acutely mentally ill.
I don’t think anyone would argue that their response to Mr. Ostling’s situation did not go horribly wrong. What should have been a routine welfare check followed by, if appropriate, the involvement of a Community Designated Mental Health Professional (CDMHP), turned into the death of one of our citizens.
Whether the 4’50” elapsed time is an issue for the Court is for the Court to decide, as it will. What I’m saying, as a qualified professional, one who has been trained in such situations and actually experienced them, too, is that the 4’50” is definitely contrary to best practice. Furthermore, it came about as a result of the actions of the officers and not Mr. Ostling. Doug Ostling did not open the door. That was done by the officers. It was a mistake. They did know that Mr. Ostling had a problem with mental illness. Had they been properly trained in a commonly and inexpensively available method for dealing with just such situations, it is possible that they would not have made the mistake.
My point is this: As a community, are we going to insist that our police department institute the best available practices for law enforcement regarding how they deal with citizens in a mental health crisis? So far, they have not.
Mr. Packard:
It is also possible that Douglas could have opened that door with a loaded firearm and we could be burying another police officer or two. How would you recommend wew respond to that as a community? What would you be posting about dealing with the mentally ill if Douglas had followed through with his threats to kill his father or if he had made it into Brittnay Spears house instead of being arrested on her porch?.
Kenn:
With the number of Police Officers being executed in cold blood in our state alone over the past few years, would you drive to Tacoma in a Police uniform unarmed?
The question is NOT “driving to Tacoma … unarmed”. It is the propriety of walking from the parking lot of the well guarded federal court with a group of police officers to the front entrance in full view of the plaintiff’s, witnesses, jurors, attendees, judges and court personell while armed, very likely with the same gun that killed Doug Ostling.
You might like to google and read the RCW definitions of trampering with or intimidating a juror, witness or a court official, all major criminal offenses.
Given this is an open carry state, how would you respond if the plaintiffs
all brought loaded AK 47’s in full view of others to the federal court check in?
Or what if the plaintiff’s attorneys pulled a stunt similar to the defense attorney’s double bitted ax illustration by standing 5 feet away from a witness on the stand pointing the 9mm Glock used to kill Doug Ostling and asking them what they would do ?
Our “Pretorian” guardians seem to not want any of us, including the court, to forget that “power comes from the barrel of a gun”. Did the officer(s) wear their empty holsters in the court room? Are the civil authorities in charge or
the militarized police? Are the civil authorities justifiably “impatient” with the plaintiffs or living in fear themselves?
As a plaintiff, witness, juror, attendee, judge or court personell you would have to be particularly dense not to get the message.
If Sue Peters claims to be a policing expert, and testified on everything she thinks the officers should have done in hindsight, then yes, I believe it would be appropriate to get her opinion on what she would do in the standoff situation. Also, where did anyone mention a gun being pointed or an axe being held, all the story says is, ” Estes rebutted by having her stand five feet from him, in front of the jury box. He pretended to hold the axe as officers testified Douglas did. Then he took a sudden step toward her, and asked if she would have shot. She said she would not have shot.”
Alexis – are you suggesting the courts consider your what ifs in determing the outcome? Nothing of the sort happened so maybe you could join us in the real world and deal with what is not what if.
The courts should definately not consider what ifs. That was my point. The jury needs to focus on the facts of the matter, such as the fact that the ballistics evidence presented in court yesterday removes all credability from William Osterlings testimony. If Officer Benkert was actually at the bottom of the stairs how could he have opened the door as implied by William? Hopefully, Gunnar, you can admit that the Plantiff’s own ballistics expert is with us “in the real world.”
Ken: As long as the AK-47s were in compliance with State (non-fully automatic and not held in a manner that would be construed as menacing (like in a holster) They would be within their rights as citizens to carry them to check in. I would have to argue that a civilian carrying an AK-47 might be considered a little suspicious given the state of current affairs. As to the empty holster question, We should find out from someone on BIPD if it is part of the uniform that the Officers would be wearing to the trial.
Dr. Packard,
Thank you for your very thoughtful and insightful description of what it feels like to have a schizophrenic mind. If anything good can come from this case maybe we can at least learn to understand each other better.
It is my understanding, from conversation with a former BIPD officer, that Cencom keeps a log and information available to responding police regarding mental health issues with repeat callers. The first place they could have looked for more information about Douglas and his mental health would have been to ask the Cencom operator about the history of the caller. This same officer told me that he had previously responded to a 911 call from the Ostling residence and arrived to find Douglas in a similar state of rage. What did he do? He talked him down. He spent about an hour and a half with Douglas trying to establish a relationship with him. Unfortunately this is one of the decent officers. BIPD ran out because he did not follow the crooked blue line.
Why didn’t they look through the bullet hole in the door?
Dr. Packard you are right in asking , “What will our community do if the Ostlings lose their case?”. There are a number of us on this Island who have been there. We are not giving up on what we know first hand to be a righteous struggle for our basic civil rights vis-a-vis a militarized police department and their union which has more power, influence and decision making authority, than our entire city council and revolving city managers.
Bob Scales said at a council meetin of late that the council has no authority over the police department. He would do well to read the 9th Circuit cases which find that members of a city council who are aware of their City’s police department’s repeated use of excessive force against citizens and DO NOTHING are liable.
The power the City council has over the police guild is absolute when it comes time to renegotiate their contract with our city. I for one hope they don’t. I would never call BIPD for help. But if the council continues to be a flock of blind sheep to this problem and renews BIPD’s contract it should be on the condition that implementation of the kind of mental training described by Dr. Packard and implemention of the recommendations of the reform expert they talk about be MANDATORY. Another condition which should be mandatory is the BIPD’ Guild’s agreement to submission to the investigative and disciplinary powers of a citizen oversight committee formed to independently investigate police misconduct complaints. Many different citizens have called for this for many years but the pleas fall on the ears of a council which turns its cheek so as not to hear or see.
Alexis- sorry for the delay in answering your previous question. The Ostling case as well as some or all of the other numerous police misconduct cases filed against BIPD in the last number of years should have been settled. Our city government should not have chosen denial as their defense. They should have seen that 5 such lawsuits and an equal number of separate claims for damages against the police, all filed within four years of each other, by credible complainants, in a department as small as BIPD, on a formerly peaceful Island like ours, meant: City we have a big problem here. Instead of crucifying the messengers and battling it out in court they should have FIXED the damn problem. If you submit a Public Records request to find out how much the City and it’s insurance company have paid the Keating Buckling law firm to deny the problem in court, I surmise it will be well over a million dollars. And the appeals keep coming, lining the pockets of the defense lawyers who profit greatly from litigating other people’s horror. Calling it a draw and settling a case means the firm has to stop billing, something they are loath to and never do. The direction of law over the past 20 years has been to mediate, not litigate, thereby resolving rather than perpetuating the problem.
In the meantime, win, lose or draw, we still have the problem and everyone in City government knows and denies it. The million dollars would have been better spent actually fixing the problem. Instead we have a non-transparent city council, the members of which hide in closed door, so-called executive sessions, and, along with their lawyers, perpetuate the problem. Kim Koenig
Kim:
As far as settling, my understanding of a civil case is that there would have been some attempt to settle prior to going to trial. It would then be up to the attourneys to deal with a mediator to agree on a sum. Does anyone know if the family and city attempted to settle out of court?