Posts Tagged ‘Douglas Ostling’

This morning in U.S. District Court in Tacoma, attorneys for the City of Bainbridge Island and the family of Douglas Ostling argued the city’s post-trial motions before Judge Ronald Leighton.

In June, a jury awarded $1 million to Bill and Joyce Ostling whose son, Douglas, was shot and killed in 2010 by Bainbridge police officer, Jeff Benkert. The jury found that Benkert did not violate Ostling’s constitutional rights, but nevertheless awarded $1 million against the city for failure to train its officers in dealing with the mentally ill.

The city filed a motion asking Judge Leighton to enter a Judgment as a Matter of Law (which would set aside the jury’s verdict because it was not valid under the law). In a second motion, the city asked for a new trial for former police chief Jon Fehlman, because he was unable to attend trial and testify on his own behalf after he was hospitalized with pancreatitis.

Judge Leighton told the lawyers to focus primarily on the first motion in oral argument, questioning whether Fehlman “plays a role in this at all.” He later elaborated on that statement, saying that Fehlman was “in effect a placeholder” who acted in his official capacity on behalf of the city. Ostling attorney Nathan Roberts agreed, saying Fehlman’s absence from trial didn’t matter because the eventual judgment “will never be against his personal assets.” Roberts suggested that because the city appointed Lt. Phil Hawkins as acting police chief during the trial while Fehlman was ill, Hawkins would have been available to testify and should perhaps have been on the verdict form instead of Fehlman. (more…)

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As expected, the City’s attorneys filed a post-trial motion in U.S. District Court yesterday, asking the Court to enter judgment in favor of the City, and invalidate the jury’s $1 million verdict for the Ostling family.

The Ostlings sued the City, Police Chief Jon Fehlman and Officer Jeff Benkert for violating Douglas Ostling’s constitutional rights when he was shot and killed by Officer Benkert in 2010. On June 1, a jury found that Officer Benkert did not violate Ostling’s constitutional rights. Nevertheless, it found that Chief Fehlman and the City failed to properly train its police officers and on that basis, it rendered the $1 million verdict in favor of the Ostlings.

This motion is not an appeal, but rather a request to the Court to set aside the jury’s verdict as a matter of law. If the motion is not granted, the City can appeal the verdict.

The City’s motion claims that the jury was given flawed instructions by the Court, due to a “last-minute change” on the failure-to train claim. The City argues that the change was made “based on misrepresentations of Plaintiff’s counsel” as to 9th Circuit precedent as well as the Plaintiff’s legal complaint. Due to these errors, the City argues, “The jury mistakenly believed it could find liability against Chief Fehlman and the City without finding Officer Benkert violated Douglas Ostling’s rights. If the Court had simply followed the 9th Circuit model instructions, as proposed by the Defendants, this problem could have been avoided.” (more…)

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On this tenth day of trial in Ostling v. City of Bainbridge Island, the defense called three witnesses, and then rested. Tomorrow, the judge will instruct the jury, followed by closing arguments from both sides. The jury could begin deliberating before noon.

Two of today’s witnesses were from the Kitsap County Sheriff’s Department, and one was from the Bainbridge Island Police Department.

Sergeant Russell Clithero

First up was Sergeant Russell Clithero, an eighteen-year veteran of the Sheriff’s department. He’s been a member of its SWAT team since 1996, and was the first SWAT officer on the scene after Douglas Ostling was shot by Officer Jeff Benkert.

He testified that the purpose of SWAT teams is to respond to high risk situations that patrol officers are not equipped to handle. SWAT officers have special equipment, training and weapons.

He said a “barricaded subject” is any subject who is behind a closed door, and won’t come out or open the door. There is no requirement of an actual barricade blocking entry. Clithero said that in the Sheriff’s department, when dealing with a barricaded subject, it’s mandatory to call SWAT. While patrol officers might make entry to a barricaded subject under some circumstances, it is not safe because they lack the specialized equipment, training and weapons of the SWAT officers.  (more…)

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Seattle police sergeant Joe Fountain testified Thursday that Officers Jeff Benkert and Dave Portrey acted reasonably the night Doug Ostling was shot and killed. That testimony is important because the standard for determining whether there were constitutional violations is what a reasonable police officer would have done in the same circumstances. The Ostlings have alleged violations of the fourth and fourteenth amendments.

Fountain has been with the Seattle Police Department for more than twenty years. He leads Seattle’s crisis intervention team and has been a lead tactics instructor for six years, training officers from all over the country. He is a trained SWAT officer and has been present during four officer involved shootings. (more…)

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Prior to Joyce Ostling taking the stand this morning, Judge Leighton made a significant, though not unexpected ruling on the admissibility of some of Douglas Ostling’s records. He agreed to admit several medical records, with certain redactions, offered by the defense for the purpose of showing that Douglas Ostling had a history of violence and homicidal feelings.

Richard Jolley’s cross examination of Joyce Ostling resumed. He produced records from Kitsap Mental Health, and read from a 2001 report, when she had contacted that agency seeking help for Douglas. The report said that Douglas was “allegedly delusional and has threatened to kill…his father” and that he was a “possible threat to others.” Joyce said she hadn’t seen the record and didn’t remember the statements it documented. (more…)

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Officer Dave Portrey testified for most of Thursday and half of Friday, as the plaintiff’s case continued. Portrey was on the call with Officer Jeff Benkert on October 26, 2010, the night Officer Benkert shot Douglas Ostling to death.

Under questioning by plaintiff’s attorney Julie Kays, Portrey explained that he is a reserve officer, which is a volunteer position. Reserve officers wear the same uniform and carry the same equipment, including firearm and radio, and undergo the same training as regular commissioned officers. Portrey considers Officer Benkert a close friend in the department.

Just as her colleague had done while examining Officer Benkert, Kays pushed Officer Portrey to admit that his training in dealing with the mentally ill was inadequate and he didn’t follow his department’s manual the night Douglas was killed.

Kays asked multiple questions concerning Portrey’s familiarity with the BIPD’s General Orders Manual (GOM) and had an extended exchange with him about whether the GOM procedures are mandatory or merely guidelines. He said they were guidelines only, though officers must be familiar with them and receive training on them. Kays painstakingly questioned him on the various provisions in the GOM dealing with mental illness, attempting to demonstrate the numerous ways the officers failed to observe their own policies the night Douglas Ostling was shot.  (more…)

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Updated at 6:30 pm.

This was the first day of trial in William Ostling et al v. City of Bainbridge Island et al in the U.S. District Court for the Western District of Washington in Tacoma.

According to Kate Brown in the City’s Human Resources department, Chief Jon Fehlman, who is a named defendant (along with the City and Officer Jeff Benkert), is not expected to be able to attend the trial this week, due to a personal matter.


Chief Jon Fehlman was not present in the courtroom today. Sarah Lane of Inside Bainbridge told me that the chief has been hospitalized, is under sedation and unable to talk, due to a potentially serious problem with his pancreas.

This morning, attorneys questioned potential members of the jury and eight people were empaneled, four men and four women. The rest of the day was spent on opening statements, and the beginning of the testimony of the plaintiffs’ first witness, David Bailey, a firefighter and paramedic with the Bainbridge Island Fire Department. (more…)

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