(Update: The Oklahoma County District Attorney’s Office has refiled charges against Benjamin Harrison Plank and issued a warrant for his arrest Jan. 12, 2026. The following article remains in its original form.)
Three years after the shooting death of Oklahoma County Sheriff’s Office Sgt. Bobby Swartz, a district judge has found that she has “no other option” than to dismiss criminal charges and pursue “civil commitment” of the shooter, whose two-year stay at a state hospital has underscored systemic issues with competency restoration in Oklahoma.
Benjamin Harrison Plank told Oklahoma City Police Department investigators he shot Swartz and his partner, Deputy Mark Johns, when they came to serve him eviction papers from his mother’s home Aug. 22, 2022. He was charged a week later with five felonies, including first degree murder. On March 23, 2023, Dr. Scott Orth of the Oklahoma Forensics Center diagnosed Plank with delusional disorder and declared him mentally incompetent to stand trial. Over the next two years, Plank was given a litany of treatments and ultimately subjected to a Sell Order, which grants physicians the ability to forcibly administer antipsychotic medication.
However, District Judge Judge Kathryn Savage later found that OFC physicians did not fully comply with the Sell Order issued in May 2024. Now, at the end of a two-year period stipulated under Title 22, Section 1175.1 to see if a defendant gains competency, Savage ordered Sept. 2 that the court must drop the criminal charges and begin the process of civilly committing Plank to a state facility. If that happens, Plank could eventually be deemed fit for an outpatient program, at which point charges could be refiled.
In the eyes of Swartz’s family, the embattled Oklahoma Forensic Center’s failure to ensure Plank received timely and effective competency restoration services has likely prevented Plank from facing justice.
Austin Swartz, the son of Bobby Swartz, said his family knew it was a possibility Plank would never have a trial for the criminal charges against him, but when he learned of the the judge’s decision, he was still shocked, angry and disappointed.
“We always knew it was something that could happen, but it’s kind of like you always know you can be struck by lightning,” Austin Swartz said. “It’s not something we would like to ever think would happen if the powers that be — or, you know, the systems that were in place — didn’t fail the way they did.”
Those systems — the processes of mental health competency restoration services — have been under strain for years. The Oklahoma Department of Mental Health and Substance Abuse Services is responsible for both evaluating defendants to determine whether they are competent to stand trial and for administering the care necessary to help defendants reach competency if possible. Pretrial defendants declared to be incompetent, such as Plank, are supposed to be sent to the Oklahoma Forensics Center in Vinita for treatment, but that has frequently failed to happen in recent years.
Those failures — with treatment and transfer delays up to two years — spurred a class action lawsuit, Briggs et al v. Slatton-Hodges, that alleged violations of constitutional rights. After months of political drama in 2024, ODMHSAS and OFC agreed to settle the lawsuit through a consent decree — a prescribed process for improving care access, treatment timelines and competency restoration outcomes for pre-trial defendants deemed mentally incompetent.
As part of the decree, three appointed consultants have been tasked with investigating and monitoring ODMHSAS’ compliance with the agreement. The team, consisting of attorney John Petrila, psychologist Neil Gowensmith and forensic psychiatrist Dr. Darren Lish, issued an interim report earlier this year that said ODMHSAS had failed to meet six of eight deadlines by a prescribed June 8 date.
The six items listed as unmet in the June 13 report were:
- Reevaluating all class members waiting for restoration treatment;
- Developing and beginning implementation of a plan to reduce competency restoration service wait times;
- Developing and beginning implementation of a plan to increase new forensic beds dedicated to competency restoration;
- Developing and beginning implementation of a plan to staff ODMHSAS with individuals qualified to oversee and analyze competency restoration services;
- Offering initial and periodic training to Oklahoma district court personnel, sheriffs, and members of the Oklahoma State Bar concerning competency evaluations and restoration; and
- Developing and beginning to implement a pilot in-jail restoration program at Tulsa County Jail.
“Progress in implementing the decree to date has been halting to date. The policy statements submitted by ODMHSAS in response to various June 8 deadlines provide a good start for implementation of the decree. However, those statements do not constitute a true plan, and ODMHSAS needs to move rapidly and with urgency to create and implement the various plans required by the decree,” the consultants concluded. “In our view, there is little evidence that steps taken to date have had a direct impact on the waitlist, though the triage process, new beds at OFC, and better tracking of data by the ODMHSAS central office should have a positive impact over time.”
Interim ODMHSAS Commissioner Greg Slavonic told NonDoc on Friday the consultants’ next report on consent decree compliance is expected in early October.
“There will also be calculations and metrics done on if we, year one, don’t reach where we’re supposed to be, and fines will be assessed. And so we’re still not sure what that number is going to be,” Slavonic said. “When I came on board, we were seven months behind, and we’ve been playing catch up the whole time, and we just had the consultants in yesterday. We felt they left with a favorable opinion of the process, the procedures that we have in place now. That’s not to say they’ve they’re not going to totally buy in, because we haven’t even been around the block a year, and my group’s only been on board a hundred days. It appears that we will have a fine to address. Have no idea how much at this point.”
‘We could have forced the issue’
The “halting” progress ODMHSAS has made in speeding up competency restoration services is corroborated through a June department legal report obtained by NonDoc under an Open Records Act request. The heavily redacted document, which contains “information about current litigation and other legal matters affecting the department,” is overwhelmingly dedicated to competency evaluation and restoration.
The report lists 32 cases of “show cause hearings due to the [Oklahoma Forensic Center] waiting list for competency treatment or competency evaluation.” Despite the volume of orders for ODMHSAS to justify why individuals had yet to be evaluated for competency or admitted for treatment, the agency’s legal team wrote in its June report that it anticipated almost all of the show-cause actions would be dismissed.
Orth, the state psychiatrist, completed Plank’s evaluation March 23, 2023, when Orth diagnosed him with delusional disorder, according to Savage’s order. Orth indicated that the court needed to specify that Plank could be administered antipsychotic medication “without his consent,” which it did two months later.
“Given Mr. Plank’s current mental state, in order for any attempt at appropriate and successful competency restoration treatment to be completed for him while at OFC, it will be highly imperative, and frankly necessary, that any court order for commitment for treatment and competency restoration include a statement that allows for treating physicians to treat him as they medically deem necessary, with or without his consent, including, but not limited to, use of psychotropic medications,” Orth is noted as saying in March 2023. “Absent such an order from the court, I would not predict competency restoration to likely be even remotely successful for Mr. Plank within the statutorily allotted time.”
Plank was admitted to OFC on April 6, 2023, and OFC progress notes indicate he refused antipsychotic medication upon arrival. On May 16, 2024, the court granted the Sell Order, which allowed the involuntary administration of antipsychotic drugs. Two weeks later, on May 29, Plank began an antipsychotic drug regimen.
A June 26, 2024, update in the OFC progress says Plank’s “insight into his legal situation appeared to be improving as he acknowledged that his beliefs were not able to be proved and would likely not be believed by those involved in his case.” However, a Feb. 11, 2025, update from Orth reported Plank was “not likely to be restored to competency within a reasonable amount of time remaining in his commitment.”
“After Dr. Orth made his opinion, Mr. Plank began refusing [antipsychotic medication] Zyprexa,” the progress notes state. “This medication was not given to him involuntarily, therefore, he was not receiving antipsychotic medication.”
Four months elapsed before Plank began receiving antipsychotic medication again. On June 10, 2025, a progress notes states OFC physicians resumed medicating Plank “after verifying with ODMHSAS legal that we were permitted to continue providing involuntary medication.”
OFC physician Dr. David Mitchell also reported that there were multiple disruptions of Plank’s care “based on the defendant’s actions and the actions of physicians,” including incidents where Plank began using contraband marijuana and served as a lookout while a group of patients battered another patient. On July 24, Mitchell testified that, at one point, he wanted to increase Plank’s medication dosage, which “he did not agree to.” When asked by an attorney whether Plank needed to agree to a treatment plan with a Sell Order in place, Mitchell testified, “No, he doesn’t necessarily have to agree to the treatment. We could have forced the issue.”
The assistant district attorney then asked if Mitchell took advantage of the Sell Order to administer involuntary treatment.
“Not at that moment, no,” Mitchell replied.
Swartz recalled witnessing the moment in court.
“He testified in court that he did not follow court orders for the Sell hearing for Plank, and when asked why, he shrugged his shoulders and said, ‘Well, he’s a human too,'” Swartz said. “So the DA asked, ‘Well, OK, well, obviously Bobby Swartz was a human.’ Like, ‘He’s no less human than your patient. If the court orders you to do something, you should do it. And did you defy a court order?’ He goes, ‘Well, I did what I felt was right.'”
According to Swartz, Mitchell testified the relationship he had formed with Plank could be jeopardized by involuntarily medicating him, meaning Plank’s treatment would be worsened.
In her Sept. 2 ruling, Savage determined ODMHSAS failed to provide the court-ordered treatment, but that did not extend the amount of “reasonable time” Plank can be held at the OFC in Vinita.
“The Oklahoma Department of Mental Health and Substance Abuse Services did not [provide] the necessary court-ordered mental health treatment pursuant to the Sell Order dated May 16, 2024,” she wrote. “However, strict construction of the law in effect on the date of this order provides the court with no exceptions to consider for the tolling or extending of the two years allowed for competency restoration.”
Savage wrote the expiration of the two-year period “leaves the court with no other option than civil commitment.”
Swartz said the ruling makes his family feel like Plank will never face justice for his father’s death.
“It was kind of like a sense of anger, a sense of let down, and really just kind of like heartbreak,” Swartz said of his initial reaction. “He’ll never pay for what he did.”
When asked for a statement on the ruling, a spokeswoman for Oklahoma County District Attorney Vicki Behenna said it is still possible that Plank could go to trial at some point.
“The state filed a motion on Sept. 12, 2025, requesting that the court order [ODMHSAS] to conduct a dangerousness evaluation of Benjamin Plank. Evidence presented during the August hearings indicated that Plank was close to regaining competency. It is anticipated, following the completion of the dangerousness assessment, he will continue treatment and regain competency. When that occurs, he will stand trial for the murder of Deputy Swartz, as well as the four other counts he faces,” said Brook Arbeitman. “If Plank is unable to regain competency, the law requires that charges be dismissed. However, the case will not necessarily be concluded. If ODMHSAS later determines that Plank is no longer a threat to himself or others and notifies the state of his impending release, the District Attorney’s Office will refile charges and a warrant for his arrest will be issued.”
On Friday, Plank appeared in court, and District Judge Perry Hudson scheduled a competency review for Plank on Dec. 2.
Despite the potential process outlined by Behenna’s office, Austin Swartz said he did not feel confident in how the case is progressing.
“We recognize that is a possibility, but only if the doctors at Griffin — or whichever facility ultimately evaluates him — determine he is competent and authorize his release. Even at that point, the district attorney would refile charges, and the process would start over. My concern, however, is that he may continue to exploit the system, be redirected to OFC, and the cycle would repeat itself,” Swartz said by text message. “While I try to remain hopeful that accountability will eventually be achieved, the shortcomings we have already witnessed make it difficult to be confident that [ODMHSAS] will not fail again.”
When asked for comment, ODMHSAS director of communications Jennifer Hogan responded with brevity owing to the agency’s general policy of not commenting on specific patients or cases.
“We will abide by the court’s ruling,” she said.
‘That’s when I opened fire’: Plank recounted shooting to investigators
Plank lived with his mother, Nancy Brunette, at the time of the shooting in 2022, and he had no prior criminal history outside of traffic violations. On Aug. 8, Brunette filed against Plank for forcible entry and detainer in small claims court for unpaid rent, and three days later, she filed for an emergency protective order against her son, which was granted.
According to the protective order petition, Plank had asked Brunette to “shoot him between the eyes and ‘end my misery,'” and she reported he had “no less than eight guns,” which he would often carry around the house. Plank had also written “No pedo zone” across Brunette’s garage door, and Brunette reported he got into verbal altercations with herself and her daughter in front of her granddaughter, which left her granddaughter upset and crying.
“Again, Ben became belligerent and started yelling ‘rape, they are raping me’ throughout my backyard and front yard. No one got near him,” she wrote.
Brunette attempted to give Plank eviction papers Aug. 1, which he refused. She reported he locked her out of the home Aug. 5. Her protective order petition stated he was delivered the papers Aug. 8.
In an interview with Oklahoma City Police Department Detective Rocky Gregory, Plank admitted to shooting Swartz and Johns and attempting to shoot Deputy Melodie Norton when the three officers came to his house to deliver a writ of assistance regarding the eviction. In the first minute of the interview, Plank said he “didn’t want to do it” before launching into assertions he was the target of a “conspiracy” perpetuated by “pedophiles,” police agencies and his insurance company. Throughout the two-hour interview, Plank repeatedly brought up a conspiracy led by pedophiles, sometimes talking about it for several minutes at a time.
“I literally love everybody, man, but there’s, like, a pedophile deal going on in this country, and that needs to be addressed, and nobody seems to address it. My mom’s a pedophile. (…) My sister (is a) pedophile. Her fiancé is a pedophile,” he said. “They’ve been trying to kill me, dude. There’s a conspiracy against me, and people have been trying to kill me, and I’m just kind of fed up with it. So my mom’s trying to kick me out over nothing. I just want her to be my mom, man. I take care of her house. I take care of, you know, everything I can, like, I try to be a good son and, like, I get treated like shit. Well, it turns out she’s a pedophile. That’s why she treats me so bad and l’m not right.”
In his version of events, Plank anticipated police coming to his house and “prepared to defend myself.” He told police he gathered several firearms and set gas cans out on his driveway, which he planned to shoot. However, when Swartz, Johns and Norton showed up to his house, Plank claimed he asked them for an hour to vacate the premises.
“It escalated pretty quick. I mean, I freaking, I told him, man, gimme an hour, ’cause I got a lot of stuff still,” Plank said. “I told him I’d leave [the house]. Wasn’t good enough, man. It wasn’t good enough.”
In his version of events, as Plank spoke to Norton through the closed front door and tried to explain his beliefs that his mother — and the attorney who had helped — was a pedophile. According to Plank, Swartz and Johns moved around to a back patio door and began trying to enter it.
“That’s when I opened fire,” he said. “I told ’em I freaking fear for my life. They were kicking down the door, the back door and I kept screaming, no stop, whatever. Like, I feared for my life.”
Swartz was shot and killed. He was 58. According to The Oklahoman, Johns was shot while attempting to cover Swartz’s prone body. He survived his injuries.
Plank then got in a pickup truck and led police on a chase, ultimately stopping at the main gate to Tinker Air Force Base, where he was arrested. In his interview with police, Plank admitted he thought Swartz was dead and reiterated he “didn’t want to do it,” although later in the interview, he stopped short of calling it “wrong.”
“I’m not gonna say it was wrong. I’m not gonna say it was completely wrong. I feel bad for having to do it. But like I said, they kicked my door in, dude. What do you want me to do? I told ’em man, ‘Gimme an hour. I’ll be outta here. Everything’s fine,'” Plank said.
Gregory, the detective, asked Plank if there were any circumstances that justified shooting people.
“Well, if they’re not protecting the children, um, and they’re out to get you and run you over and fucking basically steal all your shit, there’s too — It’s too long of a string of abuses, basically,” Plank replied. “And we could go through all of it. I probably can’t even remember it. There’s no way I can trust these guys. I’m not trying to kill ’em. I’m trying to defend myself.”
‘I don’t feel that that’s justice’
Asked if he felt like involuntary civil commitment for Benjamin Plank would constitute justice, Austin Swartz said, “No, absolutely not.”
“Especially knowing, and I mean, truthfully, we found out in one of the last two hearings that even being at Oklahoma Forensic Center, they have access to game consoles, media time, libraries. I mean, they’re basically in a summer camp. They have more rights than some kids. I mean, they live better lives than most people do,” Swartz said. “I don’t feel that that’s justice. I don’t feel that going to Griffin Memorial, (which) is ultimately where he’s probably going to end up at, is justice. I mean, if you’re going to be in life in prison, which, I mean, that’s the minimum of what he deserves, you should be in a concrete box 23 hours a day, and I really don’t care how miserable it is.”
Swartz criticized certain aspects of how the District Attorney’s Office has handled the case, saying he felt like he spoke with NonDoc more in the span of 25 minutes than he spoke with First Assistant District Attorney Mykel Fry over the course of a year and a half.
“There was about a year, a year and a half, before the current ADA took the case over, that we heard nothing from anybody,” he said. “Like, I would call up there, we would not get a call back. We would send text messages, we wouldn’t get texts back. We would call the victim’s advocates. They would say, ‘Oh, let me reach out to her,’ and we would just get no answers.”
Swartz said things improved when his family invoked Marsy’s Law, which, among many other provisions, requires attorneys to keep the family of homicide victims appraised of court proceedings. He said the process also improved when Assistant District Attorney Rob McClatchie took over the case.
“I know they’re busy, but — and Rob has proved it — it doesn’t take any time to send a text message,” Swartz said. “You could literally send me anything: a thumbs up, ‘call me later,’ I don’t know, voice text. It does everything in 15 seconds.”
Swartz said despite his anger at ODMHSAS and frustrations with communication from the DA’s office, he understood why Savage felt she had to sign the order she did as Plank’s two-year period at OFC came to an end.
“Online, a lot of people are livid at the judge,” he said. “But it’s one of those things like, again, I know, and I like to hope, just from reading the room when we were in the courtroom with her, if laws gave her another avenue besides civil commitment, I truly think she would have taken them. It’s just, the way the laws are written and the way things were handled, she truly had no other option. And that’s what’s unfortunate of it all. And that’s what I want to be a change, is just to see that this doesn’t happen again, that her hands aren’t tied, that she is able to hold those people accountable for what they’ve done.”
Swartz lamented that SB 1089, authored by Sen. Paul Rosino (R-OKC) and passed via veto override earlier this year, will not go into effect until Nov. 1. The bill adds one sentence to the section that currently establishes the definition of a “reasonable period of time” as two years. The added statute reads: “Any time period where the defendant refuses medication prescribed or ordered that is designed to restore the defendant to competency shall not be used in the calculation of a reasonable period of time.”
In a later section, the bill also requires a competency evaluation when the two-year period elapses. If the evaluation determines further competency restoration treatment would be beneficial, the bill allows another two years of treatment.
“If all of this would have happened after Nov. 1, then that state law could have went into effect, which, you know, allows the judge to extend competency restoration services (or) pause [the two-year restoration period] if he’s refusing to take medication,” Swartz said. “There’s a lot more avenues that could have been opened up.”
Since the law was not in effect, Swartz said his family is using this time to “navigate” the situation “internally.”
“It’s more just trying to deal with what it is currently, and just the anger that comes along with the failures of the systems, honestly,” Swartz said. “It’s systemic failures, and there’s really nothing you can do about it in the present. I would like to say there’s changes. You know, I’m going to work to see whatever I can do to make those changes to make sure this doesn’t happen to somebody else.”
(Correction: This story was updated at 12:45 p.m. Monday, Sept. 22, to correct an error referencing Plank’s name.)
