In officer's testimony, Ostling less of a threat
The Kitsap Sun
March 3, 2012
BAINBRIDGE ISLAND — Bainbridge police are giving yet another version of what led an officer to fatally shoot a mentally ill man in his home more than a year ago.
In the latest version, Douglas Ostling was shot well within his bedroom, possibly while closing his door, according to recent depositions of the two officers who were sent to check in on the 43-year-old after he made an ranting, incoherent 911 phone call on Oct. 26, 2010.
The ax Ostling held when he was shot was not above his head — as police had initially reported — nor was Ostling within striking distance of the officer who had fallen on his back — as the Kitsap County prosecutor wrote when he ruled the shooting was justified. Rather, the ax was held across Ostling's chest while he stood more than 2 feet from the doorway, according to the officer who shot Ostling.
In a Jan. 2 deposition, the lawyers hired by Ostling's family asked Officer Jeff Benkert whether Ostling was actually behind the door when he fired three rounds at him.
"Not completely," Benkert responded.
"How about almost entirely?" attorney Jack Connelly asked.
"I don't know," Benkert said.
Attorney Nathan Roberts, who works for Connelly's firm, pressed for clarification.
"You don't know whether he was behind the door when you opened fire at him?" he asked.
"I could see enough of him to know that he was there," Benkert said. "I don't know what portions of him were behind the door."
The version of Ostling retreating behind a door is a far cry from the Ostling police conjured on the morning after he died.
In an Oct. 27, 2010, media briefing outside the police station, Bainbridge Chief Jon Fehlman recounted how Ostling had confronted Benkert and Officer David Portray in the driveway of the Ostling family home. According to Fehlman, Ostling "came at them several times," forcing officers to "push" and "deflect" him. Fehlman said Ostling then retreated to his room, retrieved an ax and charged at the officers with the blade above his head.
Nearly a month later, it became clear through the narrative in the prosecutor's decision that Ostling did not confront the officers in his driveway. In fact, he stayed in his room and told police to go away. Reportedly, when they unlocked the door in an attempt to check on his welfare, they found Ostling holding an ax over his head, ready to strike.
Portrey also mentioned the ax-above-the-head story in a statement taken hours after the shooting. Portrey said he had fallen on to his back in a crowded stairwell after failing to subdue Ostling with a Taser. Benkert fired when it looked like Portrey was about to fall victim to Ostling's ax.
It took seven months for before the tale of the overhead ax was debunked. An internal police review released in July 2011 notes that Ostling did not hold the ax over his head. Instead, Ostling menaced officers with the ax handle held across his chest, according to the review.
The review referenced "inaccurate information" police provided the press and public after the incident, but city and police officials refused to clarify.
"We're not going to reply with specifics," City Manager Brenda Bauer said in July. "We don't have anything to add."
Fehlman said in a Jan. 17 deposition that he bears no responsibility to publicly set the record straight.
"(Y)ou knew the public had inaccurate information, correct?" Connelly asked Fehlman.
"Yes," he answered.
"But you did nothing to inform the public that the information you had provided was inaccurate information, correct?"
"As far as going to the media, correct."
Fehlman said he didn't knowingly give false information. The blame lies with one of his lieutenants, who Fehlman said "filled in the blanks." That lieutenant, Fehlman said, received an oral reprimand.
Later, Connelly asked Fehlman whether his failure to correct his misinformation is consistent with the city's code of ethics.
"My actions, yes," Fehlman answered.
Fehlman did go to the City Council and Bauer to correct the information — but the meeting was held in a closed-door session, and none of the corrections leaked out.
Portrey, who had breakfast with Fehlman the morning after the shooting, said in his deposition that Fehlman got key parts of the incident wrong, but "figured somebody else would" correct him.
Benkert also kept quiet about the incident. While he knew Fehlman presented to the public a more dramatic incident than actually transpired, Benkert never attempted to correct his boss, his deposition shows.
Benkert also didn't undergo an investigative interview all officers must submit to within 24 hours of using deadly force.
In his first publicly available accounting of the incident, Benkert said in his deposition that Ostling had retreated about 4 to 6 feet into his room when Portrey entered it and fired his Taser. The Taser's probes made contact with Ostling and appeared to cause him pain, but they did not subdue him.
Benkert said Portrey then backed away and fell outside the room. When Ostling advanced, Benkert fired his gun.
While appearing to move in an aggressive manner, Ostling was well within his room and about 4 feet from Portrey when he was shot — and not standing over Portrey with an ax over his head, as police had reported before.There is little debate over what happened after Ostling was shot. With his door closed and police outside, Ostling bled to death from two gunshot wounds in one of his legs. Fearing that Ostling might still be dangerous, police did not allow medical aid units to check on Ostling for more than 70 minutes after he was shot.
Ostling's parents, William and Joyce Ostling, and his sister, Tami Ostling, filed a wrongful-death suit against with the U.S. District Court last March. They allege that police used unreasonable deadly force against Ostling, improperly delayed medical aid, violated the family's constitutional rights with an illegal search of their home and failed to adequately train officers in nonlethal, de-escalation techniques.
The trial is set to begin in Tacoma in mid-May.
By Tristan Baurick, Kitsap Sun