Judge won't let Bainbridge Island, police chief out of wrongful shooting suit
The Kitsap Sun
July 13, 2011
BAINBRIDGE ISLAND — The city of Bainbridge Island and its police chief can't duck out of a wrongful police shooting lawsuit they say should be directed solely at the officer who shot and killed a mentally ill man late last year, a U.S. District Court judge ruled this week.
The pretrial ruling was declared the "first major litigation victory" for the family of Douglas Ostling, a 43-year-old man who died of gunshot wounds during an altercation with police at his Springridge Drive home. Ostling's parents and sister filed a lawsuit in March alleging that police used unreasonable deadly force and violated the family's constitutional rights with an illegal search.
"The city and the chief had argued that the fault for Doug's death resided exclusively with the officer who pulled the trigger ..," Ostling family attorney Nathan Roberts said on Tuesday, shortly after the ruling was released. "Today, (the judge) formally rejected those arguments."
Judge Ronald Leighton ruled against a motion by the city arguing that the Ostling family's lawsuit should not apply to the city, police department or Police Chief Jon Fehlman because they were not directly involved in the alleged use of excessive force.
The ruling sets the stage for a trial that will begin May 14.
Roberts said the judge's ruling will open the police department to an "extensive investigation" into its training, policies and procedures. He said prior incidents involving alleged police misconduct will also be reviewed.
Bainbridge City Attorney Jack Johnson wrote in an email that the city's unsuccessful motion was on "a fairly technical matter of court procedure."
He added that "there are no broader implications to this ruling and it certainly cannot be read to suggest anything about the underlying merits of the case."
Officer Jeff Benkert is repeatedly named in the city's motion as the focal point of the Oct. 26 incident in which police say Ostling threatened officers with an ax. Benkert, the city says, fired the shots that killed Ostling, who bled to death from two bullet wounds in a leg. The Kitsap County prosecutor ruled the shooting justified.
The city's motion stressed that the Ostling family is suing Benkert for using "excessive force." The lawsuit's naming of the city and Fehlman is a "baseless add-on" and a "generic, bare bones allegation that could be made by any plaintiff in any lawsuit," the city's motion states.
The city will defend Benkert against the excessive force allegation, Johnson said.
In response to the city's motion, the Ostlings family's attorneys argued that the city and Fehlman should remain named in the lawsuit because they say Bainbridge police failed to properly train its officers in how to deal with people suffering from mental illness.
"(T) he confrontation, the way it was handled, and the death that resulted were all caused by the city defendants' failure to properly train and educate their officers," the attorneys wrote in response to the city's motion.
Also at issue is Bainbridge police's handling of the incident after the shooting. Police officers prevented Ostling's parents from checking on him as he bled behind a closed door. Medical aid was allowed 77 minutes after the shooting, long after Ostling was believed to have bled to death from a severed femoral artery.
The Ostling family's attorneys cite misinformation provided by police to the press and public immediately after the shooting, which described Ostling's actions in a more aggressive, dangerous manner than was later revealed.
Police procedures were not followed, the Ostlings' attorneys say, including the police department's failure to obtain an incident statement from Benkert within 24 hours after the shooting. Bainbridge police waited three months — long after the prosecutor decided the shooting was justified — before obtaining Benkert's statement.
An internal police review of the incident cleared Bainbridge police of wrongdoing but admitted the "communication of inaccurate information," the delay in obtaining Benkert's statement and noted for the first time a different position with which Ostling is alleged to have held an ax. Earlier police accounts stated that Ostling held the ax above his head. The review, which was released late last month, indicated Ostling held the ax across his chest while standing inside his room's doorway.
Last week, the Bainbridge City Council hired a police accountability expert to assess police misconduct policies and procedures. The assessment is not expected to review individual complaints and was not spurred by the Ostling incident, according to the council.
BY TRISTAN BAURICK, KITSAP SUN