Two cops, an axe and many questions on Bainbridge
The Seattle Times
February 15, 2012
There's really no saying what Doug Ostling was thinking once he hung up the phone. His parents say he was impulsive. An idea came to him, he acted and moved on. It may not have even occurred to him that calling 911 and yelling — "What are you!" "What is that!" "Are you intelligent?" — would bring the police to his home.
Ostling, 43, lived on Bainbridge Island with his parents, in a studio apartment above the garage. His room — oak floor, cedar walls, a low, pitched ceiling — was cluttered with a half-dozen computers and books stacked high, on the verge of toppling. "Celestial Navigation in the GPS Age." "Ordinary Differential Equations." "The Radar Book."
He had a double-bitted ax, to cut kindling for his wood-burning stove; a rocking chair; and by his bed a row of science-fiction titles by Isaac Asimov.
On the night of Oct. 26, 2010, two Bainbridge Island police officers set out to check on whoever had called 911. The caller, the dispatcher said, might be in a state of "excited delirium," or psychiatric distress.
The department's General Orders Manual gave instructions on dealing with someone who's mentally disturbed: move slowly; minimize noise; take time to assess, gathering information from the person's family; avoid physical contact; don't threaten or agitate. One of the officers, Dave Portrey, would later tell a lawyer he was unfamiliar with that section of the manual.
And Portrey didn't know what "excited delirium" was. Asked later to define it, he said: "Where a person was — I believe it's attracted to a — shiny objects."
The second officer, Jeff Benkert, had been with the department for three years. He came from the Los Angeles Police Department, where he would have been fired if he hadn't quit. It's not like he kept that a secret. While applying to Bainbridge he'd disclosed those findings of dishonesty and neglect of duty.
Portrey arrived first at the Ostling home, tucked in the woods at the end of a long gravel drive. By 8:54 p.m., Benkert had joined him.
What happened in the next 4 minutes and 50 seconds — and in the hours after that, and in the fallout that continues to this day — has generated doubts about the Bainbridge Island Police Department's competence and culture, particularly since the missteps of that night do not stand alone.
In the past couple of years, the 23,000 residents of Bainbridge Island have been confronted with a series of unsettling stories, from the police-guild leader accused of harassing a City Council member to the hiring of a reserve officer charged with assault a few years earlier. The city is fending off potentially expensive lawsuits, trying to mend relations with the community, and reaching out to other agencies to evaluate the department's practices.
An affluent community with dazzling views, outstanding schools and an artistic sensibility, Bainbridge Island has been ranked among the country's finest places to live. But Bill Knobloch, a retired Navy and US Airways pilot who recently stepped down from the Bainbridge Island City Council after a 10-year stint, says there's now a "buzz" on the island about the Police Department's string of worrisome incidents.
"It's a fabulous place," he says. "How can you screw up a good thing so bad? What I've seen is very disturbing. I see a bureaucratic atmosphere more concerned about preserving the palace than serving the community.
"I really don't trust what these police are going to say or write down."
"We couldn't change Doug"
Doug was their firstborn, and early on, Bill and Joyce Ostling knew he was different.
There was the sophistication of his sentences when he was 2, the realistic detail of his drawings at age 3.
At 16, he ran a bicycle-repair shop out of his family's garage. He designed and built frames, working with wholesalers "up and down the West Coast" until they realized how young he was, Joyce says.
School bored him. "He wasn't challenged enough," Bill says. His grades qualified for the honor society, but he was turned away for lack of social activities. "He wasn't the most popular kid on the block," Joyce says.
It took him eight years and four schools — the University of Washington, Shoreline Community College, Seattle University, Washington State University — to get his English degree. Large classes threw him. On campus he seemed lost.
He held the occasional job: mucking stalls, engineer at a paper mill. But it became clear that his struggles were so severe he couldn't handle work.
Bill, an expert in electromechanical technology, worked for the phone company. After Doug, he and Joyce had two daughters. Kim, the family's second born, suffered strokes and other physical setbacks. Her mother donated a kidney to her. Kim struggled with speech and walked with a brace.
To help Doug get settled, his parents bought him a mobile home on Bainbridge Island. In 2001, when Doug insisted that Britney Spears and a model were coming to pick him up, his mom called a mental-health professional. In 2002, his parents went to court and became his co-guardians. Then Doug disappeared.
He turned up in Southern California, where he sometimes lived out of his car or a storage unit. One day police picked him up on the grounds of Britney Spears' home and took him in for treatment.
He moved back home in 2005, by then in his late 30s. As always, he went through phases. He converted to Judaism and learned to speak Hebrew. He became infatuated with science fiction, but struggled to distinguish fantasy from reality.
"We finally came to the conclusion we couldn't change Doug, but we changed the way we interacted with him, which made life much better," Bill says.
If Doug yelled, his parents wouldn't argue. They'd say it was time for him to go to his room. He'd go — and the air would settle. "He does things on his time, not yours," Bill says.
One expert diagnosed Doug with schizophrenia. Another suspected Asperger's, a form of autism associated with repetitive behavior and a lack of social skills.
Doug bicycled or drove a pickup around the island. He was afraid of police, so "he would never, ever go over the speed limit," his father says.
Still, he sometimes crossed paths with officers. One time, Doug told police that people impersonated him. Another time, while reporting a suspected prowler, he told an officer "about energy beams and aliens teleporting."
In 2009, two officers, responding to a call of strange behavior, went to the Ostlings' home. After knocking, they heard a scream for them to get out. One officer, through a window, saw Doug approaching the front door with a club. The officer drew his gun. But Doug never opened the door — and the officers, aware he was not a suspect in any crime, left the house.
They chose not to escalate.
Those were Doug's bad moments. Other times, he took joy from the world around him, soaking up art and music.
In September 2010, for his 43rd birthday, the family went to Washington, D.C., where Doug spent long hours in the Smithsonian's National Air and Space Museum and picnicked at the Roosevelt Memorial. Back home, he went with family to the Picasso exhibit at the Seattle Art Museum, to the Puyallup Fair, to a concert at Benaroya Hall.
The one misfortune that fall was the death of Bella, a Samoyed Doug cherished and believed would protect him. The dog died a week or two before he made his 911 call. Doug helped bury her in the backyard.
The key in the door
Dave Portrey walked to the front door of the Ostlings' house and rang.
When Bill Ostling answered, Portrey said police had received a 911 call. Ostling said he didn't make one — but maybe his son Doug did.
With the officers in tow, he began walking toward the door that led to the garage.
Portrey had joined the Bainbridge police in 1994 as a reserve officer, a volunteer position. "A friend of mine was a police officer. It seemed like a fun job," he said in a recent deposition.
In the late '90s he tried to become a commissioned officer, but wasn't hired because he scored too low on the written test. Twice he applied; twice he was turned away. He also tried to get on with Bremerton, Poulsbo and the Washington State Patrol, but each time, his score on the written test apparently doomed his chances, according to his testimony.
Despite Portrey's test results, Bainbridge not only kept him on the force, the department elevated him to provisional officer — a temporary, paid position with the responsibilities of a commissioned officer.
Walking through the house's family room, Ostling told Portrey and Benkert that his son was mentally ill. Neither officer asked for details or sought guidance on how best to approach Doug.
Before becoming a cop, Benkert worked as a cashier at a home-improvement store, then in customer service at a bank. Inspired by the events of 9/11 — "I needed something that had more meaning," he said in a recent deposition — he applied to the Los Angeles Police Department and was hired in 2002.
In December 2005, Benkert and his partner responded to a hit-and-run report called in by a witness who had tailed the fleeing driver. An internal investigation by the LAPD concluded the two officers did almost nothing to check it out; they didn't even go to the accident scene to see if anyone needed medical help. Benkert claimed they did, but the investigator didn't believe him. The LAPD found that Benkert had neglected his duty and provided a false statement.
Knowing he was facing termination, Benkert applied to Bainbridge. And in 2007 he was hired, after Bainbridge sent an investigator to California to check out his disciplinary history. LAPD sergeants told the investigator Benkert was a fine officer with high moral standards.
In the garage, a narrow stairway led to Doug's room.
What happened after Bill Ostling reached the garage is a matter of dispute. Bill and Joyce Ostling have one account, the two officers another.
First, the officers:
Portrey went to the top of the stairs while Benkert stayed below. Seeing a lock, Portrey asked Bill to get a key. After Bill left, Portrey knocked and said who he was and why he was there. Doug yelled back: "Get off my property." He yelled that Portrey had nothing intelligent to say.
Portrey told Doug he wouldn't go away. "I explained to him that I wasn't going to leave until we had an intelligent face-to-face conversation." Portrey tested the door to make sure it was locked.
Once he got the key, Portrey put it in the lock.
And then Doug opened the door — holding a double-bladed ax across his chest.
Both officers drew their guns. Drop the ax, drop the ax, they yelled.
"Dave, Taser," Benkert said.
Portrey holstered his gun, drew his Taser and fired. Both prongs hit Ostling, driving him back. Portrey stepped into the room, but Ostling, the ax still across his chest, "started advancing on me," the officer said later.
Portrey backed out of the room and tripped, landing on his back. Benkert, from his position below the doorway, opened fire.
Now, the Ostlings:
It wasn't Portrey who went up the stairs to the door, it was Benkert. It was Benkert who asked Bill for a key. Benkert put the key in the door, and Bill heard Doug say: "911 is bugged" ... "I'm OK, go away."
One of the officers asked Bill to step away. Bill moved down the stairs, close to where Joyce was standing. Portrey moved up the stairs, but remained below Benkert.
Benkert pushed open the door.
Portrey fired his Taser.
"Stop or I'll shoot," Benkert said. And then it was bang bang bang. Benkert opened fire — not with his partner on the ground, vulnerable, but with Portrey below Benkert on the steps, on his feet.
Both accounts have Benkert as the shooter.
He fired three bullets from his semi-automatic. One sliced through a lampshade and ricocheted off the ceiling. Two hit Ostling in the left leg — one in the thigh, the other in the knee.
The door closed, with Ostling inside, the officers outside.
Two of Benkert's bullets had pierced the door to Ostling's room. They went through the wood at different angles, suggesting that Ostling, as he was being shot, was closing the door.
The minutes pass
The radio call — "Shots fired!" — came in 4 minutes and 50 seconds after the officers had arrived at the house.
Bill and Joyce wanted to run up the stairs, to check on their son. But the police wouldn't let them, saying it would be unsafe. Bill went and grabbed a 40-foot ladder so he could look through a skylight into Doug's room. Police intercepted him, saying he couldn't do that, either.
Within an hour, at least 17 officers arrived: Bainbridge, Kitsap County, Washington State Patrol. Police shepherded Doug's parents to a secluded part of the house, away from the garage. Minutes passed, without word. "I just knew in my soul they had shot him and he was dead," Joyce says. "I could just feel it."
As Doug lay in his room, bleeding, police dealt with him as a barricaded suspect. They waited on a SWAT team. They waited for medical aid. They called Doug's room and got voice mail. Police searched for the key that had been put in the lock. They considered ramming the door. They considered using that 40-foot ladder to do what Ostling's father had wanted to do.
More minutes passed.
Both of the Ostlings' daughters were at the house when the shooting occurred. Police told the family they needed to leave. Kim, in slippers, left without her brace. She marched the long driveway on the edge of her foot, in pain.
"We were treated worse than a bad dog by the Police Department," Bill says.
An hour and 17 minutes after the shots were fired, police peered through a skylight into Ostling's room; he was behind the door, his body still.
He had bled out and died.
The shooter goes on Facebook
The next day, Bainbridge Island Police Chief Jon Fehlman held a news conference. He described Ostling's death in a way that was dramatic — and dramatically untrue.
When police arrived, Ostling was in the driveway, "yelling and screaming and acting very aggressive toward the officers," Fehlman told reporters. The officers tried to calm him. But Ostling "came at the officers several times. They tried to deflect him, just push him away."
The officers used a Taser, but that didn't work. Ostling retreated to a garage apartment "and retrieved an ax and came back at the officers with the ax raised above his head." An officer fired, Fehlman said. Ostling then went back inside his apartment and "barricaded the door."
So much of Fehlman's story was wrong. There was no confrontation in the driveway. Ostling didn't retreat to go get a weapon. He didn't raise the ax over his head.
When Fehlman spoke, Benkert had yet to be interviewed about why he fired.
The Police Department's regulations say an officer using deadly force must submit to an investigative interview within 24 hours. But Benkert was advised by a police-guild attorney not to do so. So he didn't.
The Kitsap County Sheriff's Office investigated, and two months later, prosecutors said Benkert would not be charged with a crime. By this point Benkert still had not been interviewed. Kitsap County Prosecutor Russ Hauge, explaining his decision, wrote that when Benkert fired, Ostling was "standing over" Portrey, with an ax "raised over his head."
The following month, in January 2011, Benkert finally sat down for an interview.
An internal review by Fehlman's second-in-command subsequently concluded that all department personnel followed policy and "acted reasonably under the circumstances and within the scope of the law."
Bill and Joyce Ostling hired Jack Connelly, a Tacoma attorney, and filed a federal lawsuit against the city of Bainbridge Island, Benkert and Fehlman, saying the shooting was unjustified. Trial is scheduled for May.
Last month, a lawyer in Connelly's firm took Benkert's deposition.
"Is it possible that he wasn't coming over to attack you or your partner, but that he was coming over to close the door?" the lawyer asked.
"It's possible," Benkert said.
"Did he ever raise the ax above his head?"
"Not that I saw."
"Is it possible that Douglas Ostling was actually behind the door at the time that you opened fire on him?"
"How about almost entirely?"
"I don't know."
Connelly took Fehlman's deposition a couple of weeks later and grilled him about the story he'd told the media. Fehlman blamed underlings for feeding him bad information. When he learned of the inaccuracies, he alerted city officials in a private session, Fehlman said.
"Did you ever go to the press and say, 'I gave you a false report?' " Connelly asked.
"No," Fehlman said. The police chief said he did not believe he was ethically obliged to correct his account to the public.
Although Benkert went months without providing any formal statement about the shooting, he did address it on Facebook.
A week after the shooting, an officer with the LAPD sent Benkert this message: "Hey man how you doing? Heard you did some combat qual???!!!"
The next day, Benkert responded: "no sweat here ... bad guy should have listened a little better."
By Jonathan Martin and Ken Armstrong
The Seattle Times
February 15, 2012