Ostling v. City of Bainbridge Island

872 F. Supp. 2d 1117, 2012 WL 1899444
CourtDistrict Court, W.D. Washington
DecidedMay 24, 2012
DocketNo. 11-cv-5219 RBL
StatusPublished
Cited by9 cases

This text of 872 F. Supp. 2d 1117 (Ostling v. City of Bainbridge Island) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ostling v. City of Bainbridge Island, 872 F. Supp. 2d 1117, 2012 WL 1899444 (W.D. Wash. 2012).

Opinion

AMENDED ORDER

RONALD B. LEIGHTON, District Judge.

On October 26, 2010, Bainbridge Island police officers responded to a rambling, quixotic 911-call placed by Douglas Ostling, a mentally-ill man living in an apartment attached to his parents’ home. Within minutes of the officers’ arrival, the interaction went tragically awry. The officers argue that Douglas menaced them with an axe; Plaintiffs argue that Douglas simply sought to close his apartment door. In either case, Officer Benkert shot Douglas in the leg, and Douglas bled to death on the floor of his apartment. Plaintiffs argue that the shooting violated Douglas Ostling’s Fourth-Amendment protection against the use of excessive force and violated their Fourteenth-Amendment substantive due process interest in their relationship with their child and sibling.

I. BACKGROUND

A. Douglas Ostling Calls 9-1-1.

At 8:40 p.m., on October 26, 2010, Douglas Ostling called 911. (Defs.’ Mot. for Summ. J. at 2, Dkt. # 51; Pis.’ Resp. at 3, Dkt. # 66.) The call log reveals that [1122]*1122Douglas, who suffered from either schizophrenia or Asperger’s syndrome (Decl. of Steward Estes at 15, Dkt. # 52 (quoting Dep. of William Ostling at 183)), repeatedly shouted confused questions: “What are you!” “What is that!” (Decl. of Nathan Roberts, Ex. 1, Dkt. # 67.) Apparently recognizing the source, the dispatcher asked “if it was Douglas.” Id.

Officers Portrey and Benkert arrived at the Ostling home within 15 minutes. Id. Douglas’ father, William Ostling met them at the door, unaware that Douglas had called 911. (Pis.’ Resp. at 3.) William advised the officers that his son Douglas was mentally ill and was likely the source of the call. (Decl. of William Ostling ¶ 5, Dkt. # 68.) He then led the officers through the house, into the garage, and up a staircase that led to Douglas’s apartment. (Pis.’ Resp. at 4; Defs.’ Mot. at 3.)

B. Officers Benkert and Portrey Confront Douglas

Douglas did not respond to his father knocking or speaking, which caused some alarm to William who feared that Douglas might have hurt himself. (Decl. of William Ostling ¶ 9.) Similarly, the officers worried that Douglas and his father might have had some sort of altercation. (Decl. of Jeffrey Benkert ¶ 9.) Officer Portrey then knocked repeatedly and announced that the police were present. Id. at 7-8. The parties’ accounts now begin to diverge.

1. Account of William Ostling

William states that he then fetched a key to the room, which one of the officers “grabbed” from his hand and used to try and open the locked door. (Decl. of William Ostling ¶ 9.) Douglas then informed them that he did not need help, that “9-1-1 [was] bugged,” and instructed the officers to leave. Id. ¶ 10. William states that, judging from the sound of his son’s voice, it was apparent that Douglas was just behind the door. Id. Officer Benkert tried to turn the doorknob and met resistance, presumably from Douglas holding it. Id. ¶ 11. After “a few seconds,” Benkert “succeeded in opening the door ... and he began peering into Doug’s room, moving his head from side-to-side, as though he were trying to see around the partially-opened door trying to locate Doug.” Id. Benkert then said “double-bladed axe ... taser.” Id. ¶ 12. Officer Portrey then holstered his gun, removed his taser, and fired it at Douglas. Id. Firing the taser apparently caused Officer Portrey to take “a step back,” and he “stumbled slightly, catching himself on the wall”; but neither of the officers fell or was otherwise “lying in a vulnerable position.” Id. ¶¶ 12-14. Officer Benkert then said, “stop or I’ll shoot,” and without hesitation, fired three shots. Id. ¶ 13. According to William, at the instant Benkert fired, he was separated from Douglas by the door, the landing, and a banister. Id.

2. Account of Officer Benkert

In contrast, Officer Benkert states that after Douglas did not respond to his father, he “said words to the effect of ‘Doug, this is the police department’ ... “we came to check on you.’ ” (Benkert Decl. ¶ 9.) Douglas responded that “we were part of the system that he was calling to check on to see if it was intelligent,” and then instructed the officers to leave. Id. At that point, one of the officers asked William for a key to the room, which he then retrieved for the officers. Id. ¶ 10. Then, while Officer Portrey was attempting to find the correct key, Id. ¶ 10, “the door opened very quickly, and [Officer Benkert] observed Douglas with a double bitted axe in his hands holding it in front of him in a striking position, a short distance from Officer Portrey (perhaps two feet).” Id. ¶ 11. The officers drew their weapons, and Douglas moved back “3-6 feet.” Id. Benkert states that he “loudly yelled com[1123]*1123mands”: “Drop the ax, drop the ax ... Do not advance towards us with that ax or you will be shot.” Id. Douglas did not respond. Id. Portrey then requested “emergency traffic” from dispatch. M.112.

Officer Benkert states that he advised Portrey “[i]n a low voice” that he “might be able to use the TASER ....” Id. ¶ 13. Officer Portrey then tased Douglas and entered the apartment “to secure Douglas before the 5 second cycle ... ended.” Id. But the barbs failed to make proper contact, and Douglas kept ahold of the axe. Id. As Portrey entered the apartment, Officer Benkert states that he “could not provide proper cover to him and ... told [Portrey] so.” Id. Portrey then backed out of the apartment and out of Officer Benkert’s field of vision. Id. ¶ 14. In doing so, he stumbled, and Officer Benkert believed he might have fallen. Id.

Officer Benkert states that Douglas then came “rapidly” forward with the axe, and he fired three shots in quick succession. Id. ¶¶ 14-15. In between the first, and second shots, Douglas closed the door. Id. It is undisputed that the second and third shots, including the shot that struck Douglas in the left leg, passed through the door itself.

C. Bainbridge Island Police Cordon Douglas’ Apartment

On a key factual issue, the parties disagree. Defendants argue that “Benkert did not observe any of his shots strike Douglas, nor did he hear him yell in pain.” (Defs.’ Mot. for Summ. J. at 5.) Indeed, Benkert radioed after the shooting that is was “unk[nown] if anyone has been hit .... ” (Estes Deck, Ex. C at 3.)

Plaintiffs, on the other hand, argue that Officer Benkert was more certain that Douglas had been shot. Bainbridge Island Police Chief, Jon Fehlman stated that “Officer Benkert had indicated to me on his public safety statement that he had hit the subject inside the room with one of the rounds he fired, at least one of the rounds he fired.” (Fehlman Dep., 129:22-130:6.) Indeed, Chief Fehlman “believed that [Douglas] was probably in need of aid” immediately after the shooting. Id.

In any event, while paramedics arrived within nine minutes of the shooting, no one rendered aid until approximately 10:20 p.m. — one hour and twenty minutes after the shooting. (Roberts Deck,. Ex. 6 (Bainbridge Island Fire Dept, record)). Douglas had been struck in the femoral artery and had bled to death by that time.

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Cite This Page — Counsel Stack

Bluebook (online)
872 F. Supp. 2d 1117, 2012 WL 1899444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostling-v-city-of-bainbridge-island-wawd-2012.