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

6
UNITED STATES DISTRICT COURT
7 WESTERN DISTRICT OF WASHINGTON
AT TACOMA
8
WILLIAM OSTLING, individually and as
9 Personal Representative of the Estate of NO. 3:11-cv-05219
DOUGLAS OSTLING, deceased; JOYCE
10 OSTLING; and TAMARA OSTLING; COMPLAINT

11 Plaintiffs, JURY DEMAND

v.
12
CITY OF BAINBRIDGE ISLAND, a political
13 subdivision of the State of Washington; JON
FEHLMAN; and JEFF BENKERT;
14
Defendants.
15

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

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

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

19 and belief upon all other matters, as follows:

20 I. PARTIES

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

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

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

COMPLAINT - 1 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 2 of 10

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

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

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

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

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

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

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

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

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

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

11 the Estate of his son, Douglas Ostling, deceased.

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

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

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

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

16 times relevant hereto. Douglas Ostling is her brother.

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

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

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

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

21 II. JURISDICTION AND VENUE

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

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

COMPLAINT - 2 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 3 of 10

1 1391 because Defendant CITY OF BAINBRIDGE ISLAND resides in this judicial district

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

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

4 III. STATEMENT OF FACTS

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

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

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

8 degree from Washington State University.

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

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

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

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

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

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

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

16 family dinners and activities.

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

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

19 physical violence or violent crime.

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

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

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

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

COMPLAINT - 3 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 4 of 10

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

2 1-1 operator. It was clear from the nature and content of the call that Doug was suffering

3 from mental illness.

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

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

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

7 Officers Portrey and Benkert followed.

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

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

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

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

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

13 stairs.

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

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

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

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

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

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

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

21 weapons.

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

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

COMPLAINT - 4 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 5 of 10

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

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

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

4 the stairs and called for back-up.

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

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

7 by the flying bullets.

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

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

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

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

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

13 subsequent officers who arrived on scene.

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

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

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

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

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

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

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

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

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

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

COMPLAINT - 5 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 6 of 10

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

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

3 Officer Benkert.

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

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

6 Portrey’s claims that it did occur are false.

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

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

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

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

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

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

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

14 Fehlman’s claims that it did occur are false.

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

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

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

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

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

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

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

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

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

COMPLAINT - 6 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 7 of 10

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

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

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

4 IV. FIRST CAUSE OF ACTION – UNCONSTITUTIONAL USE OF EXCESSIVE

5 FORCE BY DEFENDANT JEFF BENKERT

6 33. The Fourth Amendment to the United States Constitution prohibits

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

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

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

10 Fourteenth Amendment in the companionship and society of their children.

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

12 hereto.

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

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

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

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

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

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

19 refused to provide or allow.

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

21 lost their son and Tami Ostling lost her brother.

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

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

COMPLAINT - 7 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 8 of 10

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

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

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

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

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

6 V. SECOND CAUSE OF ACTION –VIOLATIONS OF CONSTITUTIONAL

7 RIGHTS BY DEFENDANTS CITY OF BAINBRIDGE ISLAND AND JON FEHLMAN

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

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

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

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

12 come into contact.

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

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

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

16 mental distress.

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

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

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

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

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

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

23 employees regularly come into contact.

COMPLAINT - 8 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 9 of 10

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

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

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

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

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

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

7 lethal force.

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

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

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

11 Defendant Benkert in relation to the killing of Douglas Ostling.

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

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

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

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

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

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

18 her brother.

19 VI. PRAYER FOR RELIEF

20 WHEREFORE, Plaintiffs request a judgment against Defendants CITY OF

21 BAINBRIDGE ISLAND, JON FEHLMAN, and JEFF BENKERT:

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

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

COMPLAINT - 9 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax
 Case 3:11-cv-05219 Document 1 Filed 03/22/11 Page 10 of 10

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

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

3 1988, or as otherwise available under the law;

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

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

6 proper.

7 VII. DEMAND FOR JURY TRIAL

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

9 all issues so triable.

10 DATED this 22nd day of March, 2011.

11 CONNELLY LAW OFFICES

12

13 By________________________________
John R. Connelly, Jr., WSBA No. 12183
14 Nathan P. Roberts, WSBA No. 40457
2301 North 30th Street
15 Tacoma, WA 98403
Phone: (253) 593-5100
16 E-mail: jconnelly@connelly-law.com
E-mail: nroberts@connelly-law.com
17 Attorneys for Plaintiffs

18

19

20

21

22

23

COMPLAINT - 10 of 10
(No. 3:11-cv-05219)
CONNELLY LAW OFFICES
2301 North 30th Street
Tacoma, WA 98403
(253) 593-5100 Phone - (253) 593-0380 Fax