City of Bainbridge Island

DEPARTMENT OF PUBLIC SAFETY
JON FEHLMAN, CHIEF OF POLICE

MEMORANDUM
TO: FROM: DATE: RE: Brenda Bauer, Interim City Manager Jon Fehlman, Chief of Police June 20, 2011 Administrative Review

I have received the Administrative Review completed by Commander Sue Shultz regarding the officer involved shooting on October 26, 2010. Having read the review, I accept its findings that there were no violations of policy or procedures that would have altered the outcome of this incident. These findings are also supported by the Kitsap County Sheriff's investigation and the review by the Kitsap County Prosecutor. The Administrative Review also identified opportunities for improved practices. I will work with Commander Shultz on these matters through the remainder of the year.

Administrative Review 12011

Administrative Review Officer Involved Shooting October 26, 2010
Completed by Commander Sue Shultz

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OVERVIEW AND OBJECTIVE

The primary goal of this administrative review is to provide a thorough examination of the specific incident and determine first, whether any violations of policy may have contributed to the incident and second, if there are collateral areas where the Bainbridge Island Police Department can improve the agency's response to and handling of any critical incident. Even where an incident was handled according to policy, it is the Department's responsibility to learn from each and every event and look at opportunities to better the Bainbridge Island Police Department's response to critical incidents. The review includes the following: • • • • •
A.

Incident Summary Standards/General Orders Reviewed Review & Conclusions- Incident Related Actions Collateral Matters & General Opportunities for Improvement Summary
INCIDENT SUMMARY

The following incident summary was created based upon the review of the investigation, interviews of all involved officers, and any and all records, documents and photographs collected during the investigation. On 10-26-10 Bainbridge Island Police Officers received a radio call of an "unknown problem" at 7700 Springridge Road NE, Bainbridge Island. Officers were advised by 911 dispatch that the caller, possibly Douglas Ostling, was yelling "What are you?", "What is that?", and "You are useless," over and over without answering questions. The dispatcher advised officers that the caller wouldn't answer questions and sounded as if he was possibly in a state of "excited delirium." (Excited delirium is a way of describing symptoms which may include delirium, psychomotor agitation, anxiety, hallucinations, speech disturbances, disorientation, violent and bizarre behavior, insensitivity to pain, elevated body temperature, and superhuman strength associated with acute symptoms of serious mental illness and/or drug use, particularly stimulant drugs.) Officers Benkert (820) and Portrey (859) were working in separate vehicles, wearing full Bainbridge Island uniforms and responded to the residence. Officer Portrey arrived at the residence first and waited for Officer Benkert to arrive. Both officers conducted a safe , approach to the residence on foot and did not observe or hear anything abnormal. Once at the front door of the residence Officer Portrey observed an older man sitting in the living room area watching TV. Both officers paused to gather, observe and listen, noting nothing unusual. Officer Portrey knocked on the door and observed the older man get up from where he was

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sitting and open the front door. Officer Portrey spoke with the man who identified himself as William Ostling. Officer Portrey advised him of the telephone call that 911 had received from their residence. Mr. Ostling stated that he did not call police but indicated to officers that his son, Douglas Ostling, lived above the garage and then stated, "Let's go see Doug." Mr. Ostling turned and started walking in the house with Officers Portrey and Benkert following. The officers followed Mr. Ostling from the front door of the house to the garage door and to the area outside a loft/apartment in the attached garage. Mr. Ostling identified this as the primary residence where his son lived. Mr. Ostling led the way up a set of narrow stairs to the door of the apartment, followed by Officer Portrey, with Officer Benkert at the rear. The stairs going up to the door of the apartment are in a "U" shape; the first course of stairs leading to a landing below the floor level of the apartment, turning 180 degrees with two steps leading up to the landing and the apartment door. The landing below the level of the apartment was cluttered with several pairs of shoes, a vacuum and a large skateboard. All parties involved in the incident and the investigation noted that the stairs were very narrow. The scene sketch, from the Kitsap County Sheriffs Office, shows the stairs to be approximately 20 1/4 inches wide and 22 7/16 inches wide on the landing at the apartment door. The entire area at the top of the stairs is contained in a space measuring approximately 3.4 feet wide by 6.5 feet long. Once at the top of the stairs Mr. Ostling knocked on the door of the apartment and called out to his son, getting no response. He tried again, unsuccessfully, to get an answer from his son. In order to determine the welfare of person(s) inside the apartment, the officers asked Mr. Ostling if he had a key to the door. He replied that he did and he was asked to retrieve it. Mr. Ostling withdrew from the landing, squeezing past both officers to make his way down the stairs. Officer Portrey then knocked on the door and announced himself. Both officers heard a man voice on the other side of the door loudly say "Get off my property," and "You have nothing intelligent to say." Both officers described some of the comments the man was making as "unintelligible" and in an order which did not make sense. The conversation through the door supported the earlier information the officers received from the dispatcher regarding the conversations the dispatcher had with the person who called 911. Officer Portrey stated he tried to have a dialog with the man yelling behind the door, but the man would not engage in logical or meaningful communication with him. Officer Portrey asked "Douglas" (by name) to open the door so that the officers could verify he was "OK." The request was refused as the man behind the door yelled, "Get off my property, you have nothing intelligent to sayl" After approximately 20 to 30 seconds, Mr. Ostling returned with three keys on a ring which was passedto Officer Portrey. Once Officer Portrey had the key ring, he saw that it appeared to have two door keys and a vehicle key on it. He then moved closer to the door. He positioned himself so that his right side

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was against the walt and his body was even with the door frame. He quietly took the doorknob in his right hand and was preparing to insert one of the two door keys into the lock when he felt movement on the doorknob. The knob turned and the door was rapidly pulled open. From his position on the stairs below Officer Portrey, Officer Benkert saw an adult white man standing approximately 2 to 3 feet back from the threshold of the door holding an axe. Officer Benkert called out "Axe," and "Drop it," and drew his side arm. Officer Portrey, fearing that he was about to be attacked, drew his side arm and backed away from the apartment door. Both officers described the man as being in a "bladed" position - an angled or fighting stance -with his left foot slightly in front of his right. The man had his left hand on the lower portion of the axe handle and his right hand closer to the head of the axe. The officers also saw that the man had his hips rotated and positioned in a clockwise direction, in a manner that is used to deliver a strike or blow. The axe handle was across the man's chest with the blade slightly above his right shoulder. Both officers described the axe as a full size, double bladed axe. Given the facts known to the officers up to this point, the confined space where the encounter was taking place, and the stance the man was in, both officers stated they felt that the man was an immediate threat to their safety, that he was in a position of advantage and prepared to deliver a blow with the axe. Officer Portrey moved back from the door with his sidearm drawn. Officer Benkert remained in position, on the stairs down from the "u" shaped landing. Both officers loudly commanded the man to drop the axe. The officers observed the man was "staring right through" or looking beyond Officer Benkert and he did not comply with the officer's commands. During this time, Officer Portrey made a radio call for "Emergency Traffic," and repeated his commands to the man to drop the axe. Officer Benkert then told Officer Portrey to utilize his Taser to gain control of the man and mitigate the threat of the axe. Officer Portrey recognized that he was not in a position to hold cover if Officer Benkert were to use the Taser, and immediately holstered his sidearm and drew his Taser. With Officer Benkert holding lethal cover, Officer Portrey said he slowly advanced back to the door and took a firing position. He said he saw that the laser aiming dot was center mass on the man and he pulled the trigger. Officer Portrey knew the Taser deployed as he heard and felt the activation, but he did not see the probes make contact with the man. Officer Portrey kept the trigger depressed. He saw the man shuffling backwards and moving his shoulders back and forth, but never relinquishing the axe or going to the floor as commanded by Officer Portrey. During the entire first activation, the man screamed, but did not go to the floor. Officer Portrey then gave a second, shorter activation. Officer Portrey began to move towards the man, but the second application was having no effect. At this time, Officer Portrey was just at the threshold of the apartment, about 3 to 4 feet away from the man holding an axe.

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Officer Portrey saw the man begin to advance on him taking short half steps, and noted the man's face was red and had a "wild look." Officer Portrey began to back away onto the apartment landing towards the "U' shaped landing when he lost his footing, tripping on items that had been left on the landing. Officer Portrey fell backwards, landing on his back, with his feet towards the apartment door. As Officer Portrey went down, he lost his grip of the Taser he had been holding in his right hand and dropped it down the stairs. As Officer Benkert watched from below he continued verbal orders to the man to stop and drop the axe. He saw Officer Portrey back away from the man's position and then disappear from his peripheral view, with the man continuing to advance with the axe in a striking position. Officer Benkert states he knew that as the distance between the man and Officer Portrey closed, the threat of death or grave bodily injury went from "imminent to immediate." Officer Benkert then fired his sidearm three times. Officer Benkert started out at a low-ready shooting position, but due to the short distance, the pace that the man was moving, and the man's height, he was not able to get a "center of mass" point of aim. Officer Benkert states he ceased firing when the man backed into the apartment and the door to the apartment closed. Officer Benkert recognized the immediate threat had diminished as the man was behind a closed door. However, he believed the man was still armed with an axe and a potential threat. Officer Benkert then made the "Shots fired" radio call. Officer Portrey says that after the shots were fired by Officer Benkert, he saw that the door to the apartment was closed, but was unaware of how the door had been closed. Officers Portrey and Benkert began to retreat down the stairs to the garage floor. As they did this, Officer Portrey recovered the Taser that he had dropped. Once at the bottom of the stairs, Officer Portrey changed the cartridge in the Taser as Officer Benkert held cover on the stairs. Officer Portrey then covered the stairs with his sidearm as Officer Benkert replaced the magazine in his sidearm. The officers did this because neither was certain that the man had been hit by any of the three rounds and in order to reengage with the offender if needed. Officer Portrey then asked William Ostling to open a garage door and silence a fire alarm that had activated during the firing of the gun. Officers Benkert and Portrey then re-approached the door of Douglas Ostling's apartment to see if the door was locked or unlocked. Officer Portrey discovered the door was locked so they tactically retreated to the base of the stairs and requested SWATto respond to the scene. Officer Benkert and Portrey stated that no one responded to any of their verbal calls into the apartment after the shooting, nor did they hear any sounds coming from the room. Officer Benkert requested emergency aid to stand by as he was unsure if the man had been shot. Furthermore, they requested that William Ostling get a ladder so that they could try to see into the room to check on the man's status. Officer Berg and ReserveOfficer Guy Rochearrived shortly after this.

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It was then discovered that the room had no windows and only a "skylight," which was unsafe to accessdue to tactical approach, the roof's pitch, and the inability to provide a safe cover to protect an officer from any type of weapon the man might have while attempting to view him through the skylight. The identity of the subject was not confirmed as Douglas Ostling until the SWATteam made entry into the apartment. B. STANDARDS/GENERALORDERSREVIEWED

Based on a review of the incident, it was determined that the following General Orders from the General Orders Manual (GOM) should be reviewed. The policies and procedures are listed in order of appearance, not by order of importance or consideration. At the time of this incident the Bainbridge Island Police Department was evaluating the existing policies and procedures against best practices with consultant Lexipol. Several of the policies are dated and the terminology has changed, but it was the working standard at the time of the incident. Policies Reviewed C-2 C-3 C-5 C-6 C-7 C-8 C-ll F-12 C-13 C-14 C-17 C-18 C-19 C. Code of Ethics Command Staff Notification and On-Call Responsibilities Uniform Regulations Role Definitions for Management Positions Conduct Arrestees; Searching, Handcuffing, Transportation Use of Force Lethal and Less-lethal Weapons Patrol Communications Police Vehicles Media Relations Special Operating Procedures

REVIEW & CONCLUSIONS-INCIDENT RELATEDACTIONS

The conclusions below are based on information gathered throughout the investigation and evaluated against the GOM. Lieutenant Bob Day and Detective Trevor Ziemba gathered all the information and completed this evaluation. 1. Tactical considerations/Reaction Space

Officers Benkert and Portrey responded to the scene utilizing proper response and radio traffic. The officers were responding to an "unknown problem" involving a person experiencing

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possible "excited delirium." By policy and practice, officers are required to check on the welfare of citizens and determine, if possible, if they are a threat to themselves or others. Officer Benkert did not want to have William Ostling as the point contact with his son, as he thought that there is always a potential that a family member could be a factor in the person's distress or a trigger for further distress. For this reason, passingthe key to Officer Portrey kept Mr. Ostling out of harm's way and allowed for a better chance to have a productive conversation with Douglas Ostling. Officers Benkert and Portrey were in a very small area when Douglas Ostling was ultimately contacted. It was apparent to the officers, because of their experience and training, that he was suffering from some sort of mental breakdown. Once in the small space, the immediate threat was exceptionally dose to the involved officers, and as such, limited their force options. Once contact was made with Douglas Ostling, withdrawing from the landing/stairs leading to the apartment was not a workable option. Again, due to the confined space, it was not safe to egress from the space without being exposed to an overhead attack with no way to defend against it. After the shooting, when Douglas Ostling retreated into his apartment, the door was dosed and locked, and the threat was slightly more contained, the officers repositioned. This was sound practice and consistent with training and officer safety practices. Officer radio traffic during the incident was reviewed and was exemplary; it was clear and concise. Officers requested "emergency traffic" at 20:59:01 and advised "shots fired" at 20:59:15. At 20:59:36 officers relayed the need for help and that they were dealing with a man with an axe. Officer Benkert requested the assistance from aid at 21:01:19 and advised it was unknown if anyone has been "hit." Law enforcement officers responded to the scene from multiple agencies. The first officer to arrive on scene arrived at 21:06:17. Officer Benkert completed a "tactical reload," which provides the officer an opportunity to reload his or her firearm to maximum capacity. This allows for the possibility of a continued need for that firearm and is common law enforcement practice. Note that the officers again risked their safety by checking the closed door and the status of Douglas Ostling. Officers are, per policy, required to determine if anyone is injured following the use of deadly force if it can be safely ascertained. The officers immediate actions after the shooting were standard and in line with training. The officers' approach to and contact with the residents were consistent with proper responses and practices. The officers' post-shooting actions requesting AID and SWAT support are consistent with standardized training and practices of law enforcement on a barricaded suspect with at least one known weapon and possible additional weapons.

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2. Force Options Inside the space at the top of the stairs, which is approximately 3 feet 4 inches wide and 6 feet 5 inches long, the tools available to contain and control Douglas Ostling were limited. Impact weapons would be ineffective, putting the officers too close to Douglas Ostling to deliver a strike. Chemical agents could not be counted on to have immediate results and, once delivered, the agents would also affect both Officer Benkert and Officer Portrey. The effects on the officers would vary but any effect would have lessened their ability to deal with the threat and would have put both at risk. The only less lethal force option available to the officers was the Taser. 3. Decision Making Regarding use of firearms, Officers Benkert and Portrey both did well, given the circumstances they found themselves in. They communicated or tried to communicate with the suspect. When confronted with the axe, Officers Benkert and Portrey recognized they had force options available and de-escalated down to deploying the Taser. lastly, they recognized there was no safe way to exit, taking defensive positions and offensive actions against the threat of a weapon in striking range. 4. Equipment Officer Benkert was dressed in his police department issued fully marked, winter jumpsuit. Officer Portrey was dressed in long sleeved dark blue uniform shirts and pants and was wearing a police department issued winter jacket. Both were wearing their department issued badges. Officers Benkert and Portrey were clearly dressed in proper and standard issued equipment and uniforms as set by Department General Orders, (GOM). Officers Benkert and Portrey were clearly identified as uniformed police officers. Officer Benkert's issued sidearm, a Glock Model 22, functioned as designed. Two of the three expended rounds were recovered. The Speer Gold Dot ammunition functioned as designed. Officer Portrey's Taser was in good working order by indication of report and the review of equipment done by the Kitsap County Sheriff's Office after-action report. Shot placement of the Taser indicated a standard deployment consistent with training. Forensic evidence indicated that the lower probe did not penetrate Douglas Ostling's clothes sufficiently to make a complete skin-to-skin circuit. Officers are trained that the effect of this type of Tasing is generalized and includes local pain that the suspect can easily function through and does not cause incapacitation. The proper response to this type of Taser deployment is to change out cartridges and re-deploy another Taser shot. In this situation, Douglas Ostling's proximity did not allow for Officer Portrey to redeploy.

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Based upon a review of the incident against the GOM, no policies or procedures were violated during this incident. D. COLLATERALMATIERS & GENERAL OPPORTUNITIES FOR IMPROVEMENT Although, as previously stated, no policies or procedures were violated during this incident and the Chain of Command was properly utilized by all involved, the incident provides an important opportunity to identify areas for improvement. 1. Policy and Procedure Recommendations • The Department should have a clear policy specifying the role of each responder during a critical incident. Officers provided safety statements at the time of the shooting. The department's internal investigative interviews were obtained three months after the incident. Per department GOM 11.070, officers using deadly force must submit to an investigative interview within 24 hours of the incident. This policy should be reviewed against best practices standards, modified as appropriate, and implemented. Department policies need to be reviewed and updated regularly. There needs to be an established procedure for the periodic review of policies. A Press Information Officer (PIO) was not utilized during this incident. Though the County Protocol requires the investigating agency to handle all press/media inquiries, the initial media release is to be completed by the involved agency. This is the type of incident where the PIO can be utilized effectively to improve communication. Not utilizing a PIOis not a violation of policy. The Chief of Police performed the duties of both Incident Commander and PIO. Best practices in incident management dictate that these two functions are handled separately. All investigating officers, including a liaison from the Bainbridge Island Police Department, would have benefited from a walk through of the crime scene prior to the release of the scene, after all pertinent evidence had been removed. This would have provided a better overall understanding of how the events unfolded. There was no general briefing following this critical incident. A briefing may have provided clearer information and avoided the communication of inaccurate information. Holding a critical incident debriefing for department personnel can help with dissemination of the factual information. The absence of information or partial

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information creates a void where people can fill in the blanks with incorrect or incomplete information. • To overcome normal challenges in multidisciplinary collaboration during an officer involved shooting, a multi-agency communication and agreement regarding response roles should be developed. An interagency memorandum of understanding (MOU) should be developed to address key issuessuch as how each organization or agency will commit resources during the incident and the subsequent investigation. 2. Training suggestions and recommendations All personnel involved in this incident attended and received training above the minimum standard required by the Department and Washington State. • Continue training for all department members on responses to people with mental illnesses. This continuing education should provide officers and staff an understanding of: mental illness, the impact on individuals, families, and communities as well as signs and symptoms of mental illnesses and stabilization and de-escalation techniques. Continue current level of firearms training. Develop and deliver additional training for alternate firing positions for the handgun. Reinforce training on identifying stress and anxiety in officers and staff who have been involved in a traumatic or significant event. Open discussions regarding the potential and prevention of Post Traumatic Stressfor law enforcement officers. Develop and deliver training on: • • Post-shooting investigations and processes. Officers involved in officer involved shootings, what to expect during the investigation, how to deal with media, community and fellow officers. Media relations and outside agency responses and responsibilities.

3. Equipment Conclusions & Recommendations • Personnel involved in this incident were properly equipped, and the equipment functioned as designed. All personnel involved in this incident were wearing department approved uniforms and equipment, clearly distinguishing them as law enforcement officers.

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• • Continue to conduct regular inspections of all uniformed personnel.

Re-affirm and continue training for Taser to firearm transitions. 4. Recommendations Regarding Post-Shooting Reviews scene was initially supervised by one lieutenant. The Chief scene and assumed command of the scene. The criminal was turned over to the Kitsap County Sheriff's Department. scene safety statement and were removed from the scene.

Following the shooting, the of Police responded to the investigation of the shooting Involved officers provided a • •

Supervisors should be trained on responding to officer involved shootings. During any critical incident investigation, a department liaison should be assigned to interface with any outside investigative agency. As the Chief of Police is the department head, they are tasked with many competing demands that divide their time and attention. Having an assigned Liaison Officer frees the Chief from having to deal with logistical investigative issues. Best practices for emergency incident management would be to identify a Liaison Officer to coordinate actions between multiple organizations.

E.

SUMMARY

As previously noted, no violation of Bainbridge Island Police Department policy and procedure or lack of training contributed to the outcome of this officer involved shooting. This conclusion is supported by the criminal investigation completed by the Kitsap County Sheriff's Department and the review by the Kitsap County Prosecutor's Office. All Bainbridge Island Department personnel involved in this incident performed as trained. All staff followed established policies and procedures, and acted in a professional manner within the scope of their duties. The criminal investigation of this incident clearly showed, based on the evidence and the facts known at the time of this incident, that all officers acted reasonably under the circumstances and within the scope of the law. The investigation conducted by the Kitsap County Sheriff's Office and the Kitsap County Prosecuting Attorney's Office found no criminal culpability on the part of any Bainbridge Island Police personnel involved in the incident. This administrative review found that all personnel involved performed according to the policy and practices of the Bainbridge Island Police Department and in doing so prevented additional loss of life. All acted within the guidelines of policies and procedures of the Bainbridge Island Police Department.

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