A lawsuit is being considered by the family of Douglas Ostling after the Kitsap County Prosecuting Attorney’s Office ruled last week that there was no crime committed by the police officer who fatally shot the Bainbridge man on Oct. 26.

Douglas Ostling’s sister, Tami Ostling, said this week that legal action has been discussed but no decision will be made until after the family receives a copy of the “Decline to Prosecute” report from the county Prosecuting Attorney’s Office. (A statement from the Ostling family is included below.)

But the city is aware of the possibility. City Attorney Jack Johnson sent a memo in mid-November to council members, several directors and the city Police Department that a lawsuit involving “the use of force in dealing with Mr. Ostling” may be filed by the family against the city and others.

The email said: “I am writing to inform you of your obligation to preserve all electronic and paper records that might relate in any way to that incident.”

The incident began when police went to the home of Ostling’s parents on Springridge Road after a 911 dispatcher received a call from Ostling, who had a long history of mental illness. Police said Ostling was screaming and talking incoherently over the phone.

After Ostling hung up at about 8:42 p.m., officers Jeffrey Benkert and David Portrey were dispatched separately with both arriving at about 8:54 p.m.

According to the report filed by the prosecutor’s office, the officers first went to the home of William Ostling, who explained that his son had probably made the 911 call from a phone in his upstairs apartment over the garage. The officers were led up a narrow stairway to the room by the father, who gave officers a key for entrance if the door was locked.

Portrey identified himself as a police officer and Douglas Ostling told him to go away, but Portrey “explained that they would not leave until they had face-to-face contact to verify his welfare.”

With William Ostling waiting at the foot of the stairs and Benkert standing a few steps down from the small landing area fronting the door, Portrey started to insert the key in the lock only to have Douglas Ostling open the door and move “to the threshold with a double-bitted axe raised above his head.”

Both officers drew their pistols and Portrey notified the county (CenCom) at 8:59 p.m. that there was an emergency. Both officers ordered Ostling to put down his weapon and when he didn’t respond, Portrey used a Taser, firing two probes. Seeing the Taser had failed and that Ostling still controlled the axe, Portrey stepped backwards, tripped and fell on his back. The following is word-for-word account from the prosecutor’s report:

“[Officer Benkert] saw officer Portrey fall, ending up in an extremely vulnerable position, his head, arms, torso and legs all exposed. Standing over officer Portrey was Douglas Ostling, a large, obviously disturbed man, screaming, an axe in his hand and raised over his head. One swing of that axe could have dealt a fatal blow to his fellow officer. He fired three times at Ostling, who then retreated behind his door.”

The two officers went down the stairs and the “shots fired” called reached CenCom at 8:50 p.m. The officers were relieved from duty when other officers arrived shortly thereafter.

The police, according to the report, treated Ostling as armed, dangerous and barricaded. According to the report released by police a day after the incident, the door couldn’t be opened and it took about an hour before police climbed up on the roof and looked through a skylight to see that Ostling was sprawled in front of the door.

Tami Ostling said her father had retrieved a ladder so he could crawl onto the roof in order to get medical help for his son, but police told him to leave the scene.

She said that she and her parents watched the event unfold and take exception to much of the account presented in the report. She said the family tried to get officers to get emergency aid to her brother, but an ambulance never arrived at the scene as was promised.

The Ostlings were not involved nor were they mentioned as eyewitnesses in the report of the incident, which was investigated by the Kitsap County Sheriff’s Department.

Douglas Ostling suffered from “schizophrenia with paranoid delusions and was permanently and severely disabled,” according to guardianship papers filed by the family in 2004.

The prosecutor’s report said the 911 dispatcher had directed officers to proceed to the home “to check on a caller possibly suffering from excited delirium,” a syndrome characterized by “agitation, pain tolerance, non-compliance with police or other directions…”

Two days after the event occurred, Police Chief Jon Fehlman said the officers were aware of Ostling’s mental illness because police had been called to the house on other occasions.

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Family’s statement contradicts prosecutor’s report

The following is a statement written by Tami Ostling, sister of Douglas Ostling:

My family has not spoken publicly regarding the death of my brother, Douglas Ostling, out of respect for the investigative and judicial process. Since the prosecutor [in his recently released report] cited untruthful statements given by Officers Benkert and Portrey, we will remain silent no longer.

In order to avoid public distrust and avert public humiliation from the Bainbridge Island Police Department, the police officers involved in the shooting death of my brother may want to consider voluntarily retracting and revising their statements. While concocting their stories – during a distinct lapse of judgment and ethics – it was forgotten that credible eyewitnesses were present.

The officers were never out of eyesight of my father during the entire incident. My mother questioned Officer Portrey at the bottom of the stairs about their actions, while Officer Benkert was attempting to open the door. Both my parents heard Doug ask the officers to leave, and Doug never left his room and never opened the door.

My father was approximately four feet away when the Taser was fired. My mother and father saw the position of the officers when the shots were fired. I saw the position of Officer Portrey during the shooting – and he was near the bottom of the stairs.

The truth is that Officer Portrey never fell backwards and he never even stood on the landing. At no point was Doug standing over anybody with an ax over his head.

The police refused to allow us to check on our loved one and refused to do so themselves. Because the officer blocked the stairway with his body and drawn gun, my father ran to retrieve a ladder to look in the skylights, only to have the police tell him he was not allowed to even set up the ladder.

For the hour that we were in the home after the incident, we were not permitted to communicate with Doug or aid him and the police did not attempt to do so themselves. Although the police repeatedly reassured us that an ambulance was coming, it never came. We were never under threat by Doug; instead, we felt under threat by the police. And there was no situation in our home until the police arrived and created one.

Bainbridge Island deserves to have only honorable men and women serving in the important law enforcement roles of protecting and representing our community. It should go without saying that distorting the truth and lying to investigators and to the public is conduct unbecoming of a police officer and a disgrace to all the brave and respectable men and women in uniform that serve our island, our county, our state and our nation.

There is simply no justification for deceiving the public and no excuse for attempting to cover up a homicide that has occurred.

The community has already heard two different stories from the police – how many more tries before BIPD gets it right? And how many more versions before the island becomes outraged at the corruption and injustice that exists within the very systems that are supposed to protect us?

Two weeks ago the Bainbridge Review hosted this valuable and necessary opinion: “It’s safe here? One traffic fatality is one too many.” Perhaps the Review will soon read: “It’s safe here? One police cover-up is one too many.”