In June, a jury awarded $1 million to Bill and Joyce Ostling whose son, Douglas, was shot and killed in 2010 by Bainbridge police officer, Jeff Benkert. The jury found that Benkert did not violate Ostling’s constitutional rights, but nevertheless awarded $1 million against the city for failure to train its officers in dealing with the mentally ill.

The city filed a motion asking Judge Leighton to enter a Judgment as a Matter of Law (which would set aside the jury’s verdict because it was not valid under the law). In a second motion, the city asked for a new trial for former police chief Jon Fehlman, because he was unable to attend trial and testify on his own behalf after he was hospitalized with pancreatitis.

Judge Leighton told the lawyers to focus primarily on the first motion in oral argument, questioning whether Fehlman “plays a role in this at all.” He later elaborated on that statement, saying that Fehlman was “in effect a placeholder” who acted in his official capacity on behalf of the city. Ostling attorney Nathan Roberts agreed, saying Fehlman’s absence from trial didn’t matter because the eventual judgment “will never be against his personal assets.” Roberts suggested that because the city appointed Lt. Phil Hawkins as acting police chief during the trial while Fehlman was ill, Hawkins would have been available to testify and should perhaps have been on the verdict form instead of Fehlman.

Judge Leighton said it was clear the jury made a compromise verdict, adding that the verdict surprised him. But, he said, if there was fault in the case, “the fault is with me,” because he’d paved the way for that verdict in his jury instructions. In giving the instructions, he believed the case law allows a failure-to-train claim to succeed even if an officer is cleared of wrongdoing.

At the same time, it “seems there is a disconnect” in the jury’s verdict, he said. But, he said he had great faith in juries, and believes his job is to support the jury’s verdict if possible under the law.

City attorney Stewart Estes pointed out that for purposes of constitutional liability, a failure to train must result from “deliberate indifference.” He said Fehlman’s testimony was crucial to determine whether he had the required deliberate indifference. Roberts countered that deliberate indifference can be inferred from the failure to train in spite of the frequent contacts Bainbridge police has with the mentally ill.

The lawyers also argued over whether the jury had ignored some of the jury instructions, in order to give some money to the Ostlings and enter a verdict that was not based on the evidence, but was an outlet for their sympathy for the family.

Clearly wrestling with the lack of clarity in the applicable case law, Judge Leighton said, “This is a tough fact pattern, and a tough case.” As an aside, he said he’d been observing the Department of Justice discussions with the mayors of Seattle and Tacoma concerning police conduct. They’re not conservative mayors, he said, and yet they threw up their hands because DOJ is “making a tough job tougher” in dealing with the mentally ill, by offering only vague suggestions about acceptable police behavior.

Saying he’d spent hours trying to make sense of the contrasting decisions relevant to the case, he observed, “There’s some clarification that the 9th circuit has to do, perhaps.”

He said he’d have his decision before the end of the week.

Go here for a refresher on the facts of the case.

The jury found that Officer Jeff Benkert did not conduct an unreasonable search the night of the shooting. They also found that Benkert did not use excessive force or unreasonably fail to render medical aid to Ostling.

The jury found, however, that the City of Bainbridge Island and police chief Jon Fehlman failed to properly train the city’s police officers in dealing with the mentally ill, and awarded $1 million for that failure. Ostling’s parents, Joyce and Bill Ostling, were each awarded $400,000 and the estate of Douglas Ostling was awarded $200,000. Fehlman and the City will be indemnified by the City’s insurance pool. 

Officer Portrey was not named in the lawsuit.

Speaking on behalf of Officer Benkert, defense lawyer Stewart Estes said, “First and foremost this is a tragedy. But a federal court jury found that Jeff Benkert acted reasonably that night and the shooting was justified.”

“They found against the chief who was deprived of his right to be there to defend himself. He and the city are liable for an unidentified officer’s unknown acts,” Estes said. He added that if the jury wanted to send a message, as the plaintiff’s lawyers had urged them to do, it is not clear what message they were sending, because Benkert’s actions were found to be justified.

The City issued this press release this afternoon:

Jury Returns Verdict in Ostling v. City of Bainbridge Island

BAINBRIDGE ISLAND, June 1, 2012 – Today, the City of Bainbridge Island received the decision from the federal court with a jury verdict regarding the wrongful death lawsuit filed by the Ostling family against the City, Officer Jeff Benkert and Chief Jon Fehlman.

The trial, which began with jury selection on May 14, 2012, examined an incident that occurred on October 26, 2010.  On June 1, 2012, the jury cleared Officer Benkert of all charges.  However, the jury found the City and Chief Fehlman liable for failure to train, and awarded the family an amount of $1 million.

“The City again wishes to extend our sympathies to the Ostling family and to state we are terribly sorry for the loss of Douglas Ostling,” said Interim City Manager Morgan Smith.

Read the Bainbridge Review accounts here and here, the Kitsap Sun’s here, Inside Bainbridge here and the Seattle Times here.