Ostling v. City of Bainbridge Island

COMPLAINT - 1 of 10

(No. 3:11-cv-05219)

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CONNELLY LAW OFFICES

2301 North 30th Street

Tacoma, WA 98403 (253) 593-5100 Phone - (253) 593-0380 Fax

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WILLIAM OSTLING, individually and as

Personal Representative of the Estate of

DOUGLAS OSTLING, deceased; JOYCE

OSTLING; and TAMARA OSTLING;

Plaintiffs,

v.

CITY OF BAINBRIDGE ISLAND, a political

subdivision of the State of Washington; JON

FEHLMAN; and JEFF BENKERT;

Defendants.

NO. 3:11-cv-05219

COMPLAINT

JURY DEMAND

COME NOW the above-named Plaintiffs, by and through their attorneys of record,

John R. Connelly, Jr. and Nathan P. Roberts of Connelly Law Offices, and by way of claim

allege upon personal knowledge as to themselves and their own actions, and upon information

and belief upon all other matters, as follows:

I. PARTIES

1. Defendant CITY OF BAINBRIDGE ISLAND (“CBI”) is a political

subdivision of the State of Washington. Among other things, CBI provides law enforcement

services through its police department (“BIPD”). BIPD’s mission is to enforce the law and

Case 3:11-cv-05219 Document 1 Filed 03/22/11 of 10

COMPLAINT - 2 of 10

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ensure the community's safety. BIPD’s purpose is to protect citizens from harm.

2. Defendant JON FEHLMAN is the Chief of the City of Bainbridge Island

Police Department who, at all times relevant hereto, was acting under color of law. In his role

as Chief, Defendant FEHLMAN is responsible for formulating and implementing BIPD’s

policies and procedures and ensuring that its officers are properly and adequately trained.

3. Defendant JEFF BENKERT is also a City of Bainbridge Island police officer

who, at all times relevant hereto, was acting under color of law.

4. Plaintiff WILLIAM (“Bill”) OSTLING and his family are long-time residents

of Bainbridge Island. Mr. Ostling currently resides on the island with his wife of 45 years,

Joyce Ostling. Mr. Ostling brings claims individually, and also as personal representative of

the Estate of his son, Douglas Ostling, deceased.

5. Plaintiff JOYCE OSTLING is also a long-time resident of Bainbridge Island.

She is Bill Ostling’s husband, and the mother of Douglas Ostling, deceased.

6. TAMARA (“Tami”) OSTLING is the youngest child of Bill and Joyce Ostling.

She was born in Seattle and raised on Bainbridge Island, and she was residing there at all

times relevant hereto. Douglas Ostling is her brother.

7. DOUGLAS (“Doug”) OSTLING is a single man who was shot and killed in

his own home by Bainbridge Island police officers on October 26, 2010. His Estate brings

claims through his surviving father and Personal Representative, William Ostling. Bill,

Joyce, Tami, and Doug are referred to collectively as the Ostling Family.

II. JURISDICTION AND VENUE

8. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.

9. Venue is proper in the Western District of Washington pursuant to 28 U.S.C. §


COMPLAINT - 3 of 10

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1391 because Defendant CITY OF BAINBRIDGE ISLAND resides in this judicial district

and because a substantial portion of the events and omissions giving rise to this claim

occurred in Kitsap County, Washington, within the Western District of Washington.

III. STATEMENT OF FACTS

10. Doug Ostling was born on September 13, 1967. He was Bill and Joyce

Ostling’s only son. Doug was highly intelligent, a trait that became evident at a very young

age. He attended college after high school, and eventually graduated with his bachelor’s

degree from Washington State University.

11. As a young adult, Doug unfortunately began to show signs of mental illness.

His symptoms were initially indicative of autism spectrum disorder (Asperger’s syndrome),

and he later showed symptoms that would be consistent with schizophrenia. His illness

eventually caused Doug to become unemployable, and in 2005 he returned to live with his

parents in a separate apartment above the garage of their home on Bainbridge Island. From

that time until his untimely and unnecessary death in October 2010, Doug lived peacefully

with the rest of his family, coming and going in their home as he pleased and joining them for

family dinners and activities.

12. Although he was mentally ill, Doug was not violent towards others. At the

time he was shot and killed by BIPD officers in late-2010, he had no known history of

physical violence or violent crime.

13. BIPD officers had interacted with Doug Ostling and knew that he suffered

from mental illness prior to their encounter with him in October 2010.

14. On October 26, 2010, BIPD officers David Portrey and Jeff Benkert responded

to a request for a welfare check at Doug Ostling’s residence. The request was generated by a


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9-1-1 call placed by Doug Ostling, who had made bizarre and nonsensical comments to the 9-

1-1 operator. It was clear from the nature and content of the call that Doug was suffering

from mental illness.

15. BIPD Officers Portrey and Benkert arrived at the Ostling home and initially

contacted Bill Ostling. Bill informed the officers that his son had likely placed the call, and

he proceeded up the stairs to the closed door of Doug’s apartment to discuss the matter.

Officers Portrey and Benkert followed.

16. Through the door to the apartment, Bill asked Doug if he had placed a 9-1-1

call. Before Doug could respond, the officers informed Bill that they needed to see Doug.

They asked Bill if he had a key to Doug’s apartment. Bill indicated that he did, and he

retrieved the key. At that point, however, the officers refused to allow Bill to open the door to

Doug’s room and, instead, took the key from him and told him to wait at the bottom of the

stairs.

17. The officers proceeded up the stairs and tried to talk to Doug through the

apartment door. Doug told the officers he was okay and instructed them to leave; but despite

these assurances, the officers insisted on forcing their way into Doug’s apartment. One of the

officers eventually succeeded in opening the door using the key they had taken from Bill.

18. Doug was startled by the intrusion into his apartment, and he headed towards

the door in order to close it and prevent the officers from coming in. One of the officers noted

the presence of an ax that Doug used to chop firewood, and the officers deployed their

weapons.

19. As Doug approached the door, one of the officers fired a tazer in an attempt to

stun and subdue him. Unfortunately, the officer failed to properly deploy the tazer, and it did


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not make good contact with Doug. Then, as Doug came to the door and began to close it,

Officer Benkert panicked and repeatedly discharged his firearm through the door, striking

Doug (who was standing behind the door) in the leg. The two officers then scampered down

the stairs and called for back-up.

20. Because the officer had fired his gun through a closing door, he was unable

to see what he was shooting. Thus, neither officer knew whether Doug had actually been hit

by the flying bullets.

21. Bill, Joyce, and Tami Ostling were shocked and dismayed when they saw and

heard the officers open fire at Doug through his door. Bill and Joyce attempted to go up the

stairs to check on Doug, but the two officers would not allow them to do so. Bill Ostling

pleaded with the officers, ultimately suggesting that he could place a ladder up onto the roof

to look through Doug’s skylight. These two officers refused this suggestion, as did the

subsequent officers who arrived on scene.

22. Approximately an hour and fifteen minutes elapsed before anyone checked on

Doug. During this time, BIPD officers did nothing to ascertain whether Doug had been shot

or whether he was in need of medical assistance. Doug lay wounded where he had fallen

behind the door, and he bled to death during this period.

23. BIPD officers Portrey and Benkert immediately realized that what they had

done was wrong. They left the scene and refused to provide statements to the other police

officers who were investigating the shooting. After speaking with his lawyer, a union

representative, and eventually with Chief Fehlman, Officer Portrey provided an account of the

shooting that distorts facts and attempts to justify what occurred. This “account” was not

finalized until two days after the shooting, after a great deal of discussion had occurred.


COMPLAINT - 6 of 10

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24. The statement provided by Officer Portrey is not honest or accurate and,

instead, attempts to create a version of events that might justify the use of deadly force by

Officer Benkert.

25. For example, the statement by Officer Portrey claiming that he “fell

backwards” and landed “resting on [his] back” is inaccurate. That did not occur, and

Portrey’s claims that it did occur are false.

26. Officer Benkert, the officer who panicked and discharged his firearm, has

never provided a statement and refuses to do so to this day.

27. After the shooting, other BIPD officials (including Chief Fehlman) also

disseminated false information about what had occurred in an attempt to justify the shooting.

28. For example, Chief Fehlman told members of the news media that his officers

had been confronted in the driveway by Doug Ostling, who Fehlman claimed was “yelling

and screaming and acting very aggressive towards the officers.” That did not occur, and

Fehlman’s claims that it did occur are false.

29. Fehlman also stated that the officers attempted verbally to call Doug down “to

no avail,” that Doug “came at the officers several times,” and that the officers “tried to deflect

him—push him away.” That did not occur, and Fehlman’s claims that it did occur are false.

30. Fehlman also stated that Doug “came back at the officers with an ax raised

above his head.” That did not occur, and Fehlman’s claims that it did occur are false.

31. Fehlman did not take any steps to reprimand or otherwise discipline either of

the officers involved in Doug’s shooting for their actions or for their refusal to provide

statements about what occurred. Fehlman actually stated that the shooting was “appropriate.”

32. Post-incident investigation has revealed that BIPD failed to properly train its


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officers regarding de-escalation techniques, non-lethal tactics, and the decision-making

process that should accompany use of lethal force. BIPD’s training and policies on these

matters, among others, are woefully substandard and wholly inadequate.

IV. FIRST CAUSE OF ACTION – UNCONSTITUTIONAL USE OF EXCESSIVE

FORCE BY DEFENDANT JEFF BENKERT

33. The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures of the person. This protects citizens and members of the

community and prohibits the government from using excessive force against those citizens.

34. In addition, parents have a constitutionally protected interest under the

Fourteenth Amendment in the companionship and society of their children.

35. These rights are long-standing and were clearly established at all times relevant

hereto.

36. Defendant Benkert violated the Ostling Family’s constitutional rights by

engaging in an unreasonably search and seizure and by using excessive, deadly force against

Doug Ostling—as set forth herein, and in other respects as well.

37. As a result of those violations by Defendant Benkert, Doug Ostling was shot

and killed and experienced substantial pre-death pain, suffering, terror, and anxiety. After he

was shot, he lay bleeding in his apartment without medical aid—which Defendant Benkert

refused to provide or allow.

38. As a result of these violations by Defendant Benkert, Bill and Joyce Ostling

lost their son and Tami Ostling lost her brother.

39. Defendant Benkert’s decision to shoot and kill Doug Ostling was objectively

unreasonable under the circumstances. Doug had committed no crime and did not pose any


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threat to the officers at the time of the shooting; to the contrary, he was closing a solid

wooden door between himself and the officers when he was shot.

40. Defendant Benkert’s callous disregard for life has continued after the shooting.

He has even gone so far as to joke about Doug’s death with friends and colleagues and on

Facebook, referring to the shooting as though it had been an exercise at a firing range.

V. SECOND CAUSE OF ACTION –VIOLATIONS OF CONSTITUTIONAL

RIGHTS BY DEFENDANTS CITY OF BAINBRIDGE ISLAND AND JON FEHLMAN

41. Defendants City of Bainbridge Island and Fehlman violated the Ostling

Family’s constitutional rights—as set forth herein, and in other respects as well.

42. Defendants City of Bainbridge Island and Fehlman have customs and policies

that amount to deliberate indifference to the rights of persons with whom its officers regularly

come into contact.

43. Defendants City of Bainbridge Island and Fehlman, with deliberate

indifference, failed to train BIPD’s law enforcement officers and failed to adopt and

implement policies for, among other things, dealing with citizens in psychological and/or

mental distress.

44. Defendants City of Bainbridge Island and Fehlman, with deliberate

indifference, failed to train BIPD’s law enforcement officers and failed to adopt and

implement policies for, among other things, the use of de-escalation techniques, non-lethal

tactics, and the decision-making process that should accompany use of lethal force.

45. The failure by Defendants City of Bainbridge Island and Fehlman to train

amounts to deliberate indifference to the rights of the persons with whom members BIPD’s

employees regularly come into contact.


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46. It was highly predictable that these failures would result in constitutional

violations, like those that occurred in this case. The Ostling Family’s tragedy was the

foreseeable consequence of BIPD’s failure to equip its law enforcement officers with the

necessary tools to handle recurring situations, such as those that involves citizens in

psychological and/or mental distress and those that require the use de-escalation techniques,

non-lethal tactics, and the appropriate decision-making process that should accompany use of

lethal force.

47. The actions of the officers involved, which deprived the Ostling Family of

their constitutional rights, conformed to official policy, custom, and practice of Defendant

City of Bainbridge Island. Moreover, Defendant Fehlman has ratified the conduct of

Defendant Benkert in relation to the killing of Douglas Ostling.

48. As a result of the actions and deliberate indifference of Defendants City of

Bainbridge Island and Fehlman, Doug Ostling was shot and killed and experienced substantial

pre-death pain, suffering, terror, and anxiety. After he was shot, he lay bleeding in his

apartment without medical aid—which the officers refused to provide or allow.

49. As a result of the actions and deliberate indifference of Defendants City of

Bainbridge Island and Fehlman, Bill and Joyce Ostling lost their son and Tami Ostling lost

her brother.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request a judgment against Defendants CITY OF

BAINBRIDGE ISLAND, JON FEHLMAN, and JEFF BENKERT:

(a) Fashioning an appropriate remedy and awarding Plaintiffs general and special

damages, including damages for pain, suffering, terror, and loss of consortium,


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pursuant to 42 U.S.C. §§ 1983 and 1988, in an amount to be proven at trial;

(b) Awarding them reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §

1988, or as otherwise available under the law;

(c) Awarding them any and all applicable interest on the judgment; and

(d) Awarding them such other and further relief as the Court deems just and

proper.

VII. DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs hereby demand a jury for

all issues so triable.

DATED this 22nd

day of March, 2011.


By________________________________

John R. Connelly, Jr., WSBA No. 12183

Nathan P. Roberts, WSBA No. 40457

2301 North 30th

Street

Tacoma, WA 98403

Phone: (253) 593-5100

E-mail: [email protected]

E-mail: [email protected]

Attorneys for Plaintiffs


Ostling v. City of Bainbridge Island

Documents

Transcript of Ostling v. City of Bainbridge Island