TACOMA — The trial on the civil rights lawsuit against the city of Bainbridge Island got off to a contentious start Monday before the eight-member jury ever took their seats.

Lawyers on behalf of the Ostlings —  the Bainbridge Island family suing Bainbridge police for shooting their mentally ill son, Douglas Ostling, after they responded to a 911 call at the family home in October 2010 — protested the details that the city’s attorneys planned to share about Ostling with the jury.

Those details paint a starkly different portrait than the one presented by the family’s attorneys.

Lawyers for the city said Ostling was intoxicated when he met police officers at his apartment door holding a double-bladed ax, and said Ostling had a history of violent behavior and thoughts, including fantasies where he killed his father.

Lawyers for the family, however, have maintained that Ostling was not violent toward others, and had no known history of violent crime or physical violence.

The trial began earlier this week in a federal courtroom in Tacoma. Before the jury was seated, Julie Kays, an attorney for the Ostling family, asked U.S. District Court Judge Ronald Leighton to exclude information from the trial that showed Ostling was intoxicated at the time police claim he came at then with an ax, and was shot twice.

The autopsy for Ostling, conducted the day after he was shot and killed by Bainbridge Police Officer Jeff Benkert, found that Ostling “had been consuming alcoholic beverages shortly before his death.”

Kays asked the judge to keep that evidence out of the trial.

The defense wanted to use that, and other information, she told the judge, “As a way to say Doug’s a bad guy, Doug was armed that night … look at the problem he himself caused.”

Attorneys on the other side, she said, wanted to engage in a blatant “bashing of Doug” before the jury.

Kays said the information was irrelevant, as it was unknown to police at the time of the confrontation.

Richard Jolley, an attorney for the city, said it was an “X factor” in the incident. He also noted that part of the lawsuit is based on the notion that police officers should have gotten more information about Ostling from his parents before they approached the mentally-ill man on the night of his death, and the topic was sure to come up during the cross-examination of the parents when they took the witness stand.

The judge agreed with the defense.

“Nobody can sanitize their clients. They can’t, you can’t,” Leighton said. “It’s in the mix.”

“It’s what happened at that time,” he added. “It’s going to come in.”

But the judge also warned both sides about overstepping their bounds.

“You’ve got tough issues on both sides, and you have to deal with them sensitively.”

“I hope that admonition is heeded,” Leighton said.

But Kays worried the defense would go too far in its opening argument, and would bring up an alleged assault between Ostling and his mother, Ostling’s trouble with the law in California when he was caught stalking pop singer Britney Spears, and his fantasies about killing his father.

It was information officers didn’t know the night they confronted Ostling at his door, at his apartment above his parent’s garage.

“It is incredibly disingenuous for them to proffer this information when their very officers failed to learn this information before marching up those stairs,” she told the judge.

“It’s not fair,” she said.

The judge agreed, to a point. He told defense attorneys to take the information out of the computer slide show they would use during their opening argument.

“I can’t see how you are going to keep it out, when it’s going to be in a cross examination of your clients,” Leighton added.

“You can’t have it both ways,” he continued, adding that Ostlings’ attorneys couldn’t change their client “beyond all recognition.”

Jolley, one of the attorneys on the team defending the city of Bainbridge, Officer Benkert and Police Chief Jon Fehlman against the lawsuit, pointed out that the opposing lawyers would give a sympathetic and benign view of Ostling.

Their opening presentation, Jolley noted, included 20 pictures of Doug Ostling growing up.

There were incidents of violence in Ostling’s past, Jolley said.

“They can’t use the sword as a shield,” Jolley said.

“Exactly,” the judge agreed.

“All of that evidence goes into the caldron,” Leighton said.

“You can’t separate the bad experiences from the good and want to tell a story that’s just so benign that it’s just unrecognizable.”

“What’s good for the goose is good for the gander,” Leighton said.

The judge then gave a broader view, tapping into his own history as a former trial lawyer.

“Everybody wants to shape the case so they don’t have to work hard during the trial,” he said, his voice ebbing and flowing, the lingering effects from an earlier stroke.

“You’re going to be working your fannies off,” Leighton told the lawyers on both sides; three seated at the table to his right for the defense, and the two to his left for the Ostling family.

“This is the toughest kind of case we deal with,” he said.

They wouldn’t get a “thumbs up, thumbs down all the time, so you can avoid the facts,” Leighton said.

The defense then asked the judge to exclude comments made by the police chief at a press conference following the shooting — much of it later found to be false.

There, too, the judge said that information would be allowed.

“It’s background. It’s coming in,” he said.

After the seating of the jury — four men, four women — Nathan Roberts gave the opening argument for the Ostling family, and detailed how police responding to the 911 call at the family’s home failed to follow the police manual that guides Bainbridge Police officers.

First, Roberts took the jury back to the night of the shooting, how police arrived after receiving a 911 call from the Ostling home, how police looked through the front window and saw a man watching television, Ostling’s father, and how he came to the door and then led officers through the garage and up the narrow stairway to his son’s apartment.

Roberts recounted how police were told that Ostling was mentally ill by his father, but never asked any additional questions before they went to his door.

In quick order, he detailed how Ostling shouted at police through the door. It was Ostling who had called 911.

“He thinks 911 is bugged,” Roberts said.

Ostling wanted to defend himself, Roberts continued, and grabbed an ax in his room that’s used to cut wood for the wood stove in his apartment.

Officers saw him grab the ax, and they pulled their guns. They tried to use a taser to stun Ostling, but as Ostling moved to close the door to his apartment, Benkert fired three rapid shots.

Ostling never raised the ax above his head, Roberts said, and he didn’t try to swing the ax at the officers.

“He’s closing the door,” Roberts said.

Benkert, the lawyer said, continued to shoot.

“The door is either entirely closed or almost entirely closed,” Roberts added.

Ostling had been hit twice by police bullets; both in the leg.

Roberts then detailed what happened next; police retreated and waited for other officers to arrive.

Ostling’s father retrieved an aluminum ladder from the basement, but police wouldn’t let him use it to get onto the roof and peer inside a skylight to check on his son.

An aid car arrived, but a paramedic wasn’t allowed to enter the apartment.

“Minutes are ticking by,” Roberts said.

The Ostling family was removed from their home, and had to walk down their long driveway through a sea of police, he said.

Nearby, the ambulance was sitting idle.

Later, and hour and a half after the shooting, a police officer used the ladder to get onto the roof.

“What do they see? In the interim, the mentally-ill son has bled to death,” Roberts said.

The case, Roberts said, was about officers who failed to follow their department’s own police manual.

The death should have never occurred, and Roberts said the jury will learn that training for Bainbridge Police officers was “woefully, woefully inadequate.”

But after Roberts mentioned Benkert’s troubled past as a police officer in the Los Angeles Police Department — where Benkert had resigned his commission and took a job with Bainbridge Island before he could have been fired in California — defense attorney Stewart Estes rose to object.

He reminded the judge of his earlier decision; one where Leighton had previously ruled that much of the details surrounding Benkert’s former job would be off-limits during the trial.

Leighton ordered the jury removed.

Estes asked the judge to declare a mistrial, and Leighton thought for a moment, then announced he would retire to his chambers for five minutes to review his previous ruling on Benkert’s employment history in California.

Upon his return, the judge agreed with the objection that was raised, but did not declare a mistrial.

Still, there was no way the defense could now defend Benkert’s past without putting that issue in play, he said.

“You can’t deal with the issue, drop it in the punch bowl, and ask you guys to fish it out,” he told defense attorneys. “They put a no-win scenario in your camp.”

The judge said he would tell the jury to disregard what Roberts had said.

When the jury returned, he told them there to disregard the reasons given why Benkert came to Bainbridge Island.

“It’s not real,” Leighton said.