City, Fehlman remain part of Ostling lawsuit


A federal judge has denied a motion by the city and Police Chief Jon Fehlman to dismiss their inclusion in the civil rights lawsuit stemming from the shooting death of Douglas Ostling by a Bainbridge police officer on Oct. 26, 2010.

U.S. District Court Judge Ronald Leighton released a ruling on Tuesday that said the Ostling family (plaintiffs) have alleged “sufficient facts to support a Monell claim,” which stems from a U.S. Supreme Court decision in 1978 that established local government accountability for unconstitutional acts and created the right to obtain damages from municipalities in such cases.

Ostling, 43, an island resident who was deemed mentally ill by a Kitsap County Superior Court in 2004, was fatally shot by Officer Jeff Benkert in the doorway of a studio apartment above his parents’ garage.

The shooting occurred after Ostling had made “bizarre and nonsensical” statements during a 911 call two Bainbridge officers were subsequently sent on a “welfare check” to the rural residence.

The Ostling family filed a civil lawsuit in March with the U.S. District Court in Tacoma, claiming that Benkert was guilty of excessive use of deadly force.

The plaintiffs, who are represented by Connelly Law Offices in Tacoma, also claim that the city failed to adequately train its police officers to deal with individuals suffering from psychological or mental distress; failed to adopt policies and procedures for addressing such situations; and that those procedural failures caused Ostling’s death by excessive force.

Nathan Roberts, an attorney for the Connelly firm, said the ruling “is the first major litigation victory for the Ostling family and paves the way for an extensive investigation into the police department’s training, policies and procedures, including prior incidents involving constitutional violations or other misconduct.”

The city made public a review of the incident last week that cleared the department of any wrongdoing or violation of its own policies or procedures involving the shooting. The administrative review was written by BIPD Cmdr. Sue Shultz and supported by Fehlman and Interim City Manager Brenda Bauer.

City Attorney Jack Johnson wrote in an email that Leighton’s order concerned “a rather technical issue” and that the motion “asserted that the plaintiffs’ complaint did not, on its face, make allegations sufficient to support some of their claims.”

He added that the ruling “should not be read to reflect the judge’s impressions of the actual merits of the case.”

The gist of the plaintiffs’ case, as recounted in Judge Leighton’s ruling, is as follows:

“The officers obtained a key to Doug’s apartment from his parents and announced their presence at Doug’s door.

“Despite Doug’s assurances that he was fine and requests that the officers leave, the officers entered the apartment. The city claims – and plaintiffs deny – that Doug charged the officers with an axe.

“The second officer (David Portrey) attempted to taser Doug, but failed. According to the plaintiffs, Officer Benkert panicked and fired his gun three times as Doug tried to close the door on the officers, striking Doug in the leg. The officers ran to their cars and called for backup. Doug was left alone in his apartment for an hour and 15 minutes and bled to death.”

In a pre-trial motion for “judgment on the pleadings,” the city’s attorney (Keating, Bucklin & McCormack of Seattle) wrote that while the plaintiffs’ allege excessive use of deadly force against Benkert, “defendants (city and Fehlman) do not now challenge this claim.”

However, they sought relief from the plaintiffs’ “baseless ‘add on’ claims against the officer’s employer (the city) and Chief Fehlman.”

The city’s motion document, which was filed on April 28, sought dismissal of the plaintiffs’ cause of action because of a lack of “factual basis for their allegations; they simply make generic, bare bones allegations that could be made by any plaintiff in any lawsuit.”

The defendants’ attorneys argued that plaintiffs had done no more than recite the legal elements of the case of action.

“[The] plaintiffs do not offer a single factual assertion. These are exclusively conclusory claims, hoping to get past a motion and burden the city and the chief with expensive and burdensome discovery in the desperate hope of uncovering some hypothetical fact.”

Leighton, however, said that “plaintiffs must only assert enough facts to raise a right to relief under Section 1983 above the speculative level.” (42 U.S.C. Section 1983 offers civil action for deprivation of rights.)

According to the judge’s findings, the plaintiffs asserted that the police officers knew Ostling was mentally impaired; the tone and nature of the 911 call made clear that he was mentally ill; officers entered the apartment despite requests that they leave; Fehlman did not discipline the officers for the shooting incident; and the BIPD failed to train their officers in de-escalation and non-lethal technique despite the fact officers “regularly come into contact” with the mentally ill.

“All of these facts,” Leighton wrote in his ruling, “if accepted as true, would support a claim that Officer Benkert’s actions were a result of the city’s failure to train officers or implement BIPD policies designed to prevent deadly force against mentally distressed individuals. Plaintiffs’ factual assertions are sufficient under Twombly’s plausibility standard.”

The city’s attorneys argued that the “deliberate indifference” required to support a Monell claim requires plaintiffs to establish the city’s actual, subjective knowledge of the risk.

“But the plaintiffs need not establish actual knowledge at this stage of litigation,” said Leighton’s order. “It is enough that they allege sufficient facts that, if accepted as true, would support a showing of the city’s deliberate indifference in the form of a custom or policy.”

Roberts said he and attorney Jack Connelly have initiated discovery work, but the decision will lead to an increase in depositions of people involved and the collection of written discoveries.

The trial date has been tentatively set for May 14, 2012, Roberts said.