In February, a shooter opened fire into a group of people who had gathered for a racial justice protest at Normandale Park in Northeast Portland, killing one person and wounding four others. Benjamin Jeffrey Smith was arrested and later charged with the murder of Brandy “June” Knightly in the shooting, and also faces multiple counts of attempted murder and assault with a deadly weapon. Now, an OPB investigation has revealed that the FBI had received multiple tips dating back to 2006 about Smith’s history of violent and threatening behaviors, and that the agency had contacted Smith months before the fatal shooting. Joining us to talk about their investigation are Jonathan Levinson, a multimedia reporter who covers policing for OPB, and Conrad Wilson, a reporter and producer who covers criminal justice and legal affairs for OPB.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. In February, a man shot into a crowd of people who had gathered for a racial justice protest at Normandale Park in Northeast Portland. Benjamin Jeffrey Smith has been charged with four counts of attempted murder and one count of murder for the death of the activist Brandy June Knightly. After some mass shootings, that refrain is something like ‘How could we have known?’ But that wasn’t the case in this situation.
New reporting by OPB has revealed that the FBI had received multiple tips dating back to 2006 about Smith’s history of violent and threatening behavior, and that the agency had contacted Smith roughly a year before the fatal shooting. Jonathan Levinson and Conrad Wilson cover policing and criminal justice for OPB, and join us now with more details. Good to have both of you on.
Jonathan Levinson / Conrad Wilson: Hi, Dave. Hi, Dave.
Miller: Jonathan, first. I mentioned that people warned law enforcement about Smith as early as 2006. What kinds of incidents or comments from him led people to report him?
Jonathan Levinson: Yeah, he was actually pretty well known in the local furry community for being violent and racist. Listeners may know ‘furries’ are a subculture and they’re interested in anthropomorphized animals like Bugs Bunny and Sonic the Hedgehog. Some of them dress up in those costumes. They said that he would post racist comments. He would advocate violence towards marginalized groups. His online behavior and his personal website on Reddit are also … they’re just chock full of racism and Nazi sympathies and anger towards the Black Lives Matter movement. Several people we spoke to said that they reported Smith after learning about some of his comments. One of them was as recent as 2021, the same year that he was contacted by the FBI.
Miller: Conrad, did the FBI tell you anything about their investigations into Smith prior to the shooting?
Conrad Wilson: No. We’ve asked them for comment several times immediately after the shooting back in February, and again earlier this month. Basically, the FBI says that they’re not going to comment on an open and pending case. Actually, Dave, you referenced the FBI’s investigation. We certainly think that that’s what happened here. The FBI conducted what’s called a threat assessment, but what we’re able to definitively report is that the FBI contacted Smith last year, and we also know that many people over the course of several years were concerned enough about things Smith said to report it to the FBI. We’ve spoken to former federal law enforcement officials who’ve explained this threat assessment process the FBI undertakes when it gets a credible threat. And I guess I’m kind of saying all this to sort of lay out our work. It certainly seems like it was an investigation, but the FBI has not confirmed that to us explicitly.
Miller: Let’s say that federal or local law enforcement wanted to be really proactive in cases like this to prevent shootings before they happen. They’re limited in terms of the legal tools at their disposal. One of them is civil commitment. What’s the bar for that?
Wilson: So, it’s a high bar. I mean, essentially, the state is talking about taking away somebody’s liberty over concerns that they might do something, and that’s a really big deal. In Oregon, a judge has to find that a person has a quote ‘mental disorder,’ and that because of that disorder, they’re dangerous, and that can be to themselves or to others. In other cases, it can be a person diagnosed with quote ‘major mental illness,’ has been hospitalized twice in the last three years, is showing the same symptoms that previously led to hospitalization, and unless they get care is going to continue to deteriorate to the point that they might become a danger to themselves or others. That’s sort of a rough summary. I mean, mental illness is complex and in no way is that sort of exhaustive. But those are some of the ways you can be civilly committed in Oregon.
Miller: But I mean, one of the things that’s clear about all that is just simply posting even hateful things on a website is nowhere close to that bar. Jonathan, there’s also what’s known as an extreme risk protection order, which we often call red flag laws, specifically about guns. Can you explain how this works in Oregon?
Levinson: Right. This is a law that was passed in Oregon in 2018. It’s a way for law enforcement [and] immediate family members to intervene if they’re concerned that someone might harm themselves or someone else. There’s a state law. There’s no federal policy currently. There’s 19 states, plus the District of Columbia, that have some kind of red flag law on the books. They all vary a little bit. In Oregon, like I said, it has to be a member of law enforcement, immediate family member or a co-habitants, so, like a roommate, and they can petition the court to have someone’s firearms taken away, and have them put on a prohibited list so that they can’t buy firearms in the future. The person petitioning for the order goes before a judge and then they grant the petition or deny it. If it’s granted, the respondent, that’s the person who is getting the order against them, they have to turn over their firearms and they can either let law enforcement store them, they can let a friend or family member who is legally permitted to own firearms store them, or a licensed firearms dealer. That person has 30 days to contest the ruling and go before the judge and prove that they’re not a danger. If the order stands, if it’s granted, it stays in place for one year.
Miller: How often is this used?
Levinson: So a lot of gun policies hinge on implementation, right? And these laws especially depend on that. They depend on people knowing that they exist and using them. As you might expect, if it’s a new law, uptake is slow. If it’s kind of a new concept in general … so at first, agencies had to learn about them and the word had to spread around. So I don’t want to throw out too many numbers, but in 2018, the first year the law was in effect, Oregon had 74 petitions filed, and last year there were 149 filed and so it’s catching on, right? And not just in a more liberal Multnomah County, but it’s being widely used in Deschutes County and Josephine and Polk County, all across the state really, you see numbers and uptake increasing.
Miller: So, what, you note in terms of the ability to have someone’s guns taken away temporarily. That’s if the red flag order is granted. But I’m curious about a kind of middle ground scenario. If the FBI got tips and they were concerned enough about someone that they did some kind of interviews or which we know according to the roommate, an interview did happen in this case with Smith. And then let’s say there was no red flag that was agreed upon by a judge, but that person went to a gun store and bought a bunch of new guns or a whole lot of ammo. Would that get flagged? Would the federal authorities ever find out about that?
Levinson: Probably not. These threat assessments are just that, right? They’re meant to determine if someone poses a credible threat to the community. They aren’t criminal investigations and simply being looked at isn’t enough for the government to curtail civil liberties. This is a tension that keeps coming up, right? It’s not illegal to be racist or offensive. They may look into someone to determine if they pose a threat like they did with Smith, but short of convicting someone of a felony or getting a risk protection order against them, it’s very difficult to bar them from owning firearms or to start limiting their liberties.
Miller: Conrad, I was reminded in your reporting that the FBI did a lengthy investigation of the man who ended up killing forty-nine people and wounding fifty-three others at the Pulse Nightclub in Orlando in 2016. What did that investigation entail?
Wilson: Right before the Pulse Nightclub shooting, the FBI received … before the Pulse Nightclub shooting, the FBI received a credible tip. They spent nearly a year investigating the shooter. They sifted through the man’s phone records [and] actually interviewed him twice. They followed him. They used informants to record conversations, and after all that, the agency concluded that the man did not pose a threat. That, of course, proved not to be the case and the result was beyond tragic.
Miller: There are also echoes, and this is something you mentioned in your article as well, of the two tips that the FBI received before the shooting at Marjory Stoneman Douglas High School in Parkland, Florida two years after that in 2018. Have these two cases, the Pulse and Parkland shootings…have they led to changes in the way the FBI handles tips?
Wilson: Yes. You know, those failures prompted the FBI to overhaul its tip line. They added staff, revised protocols to a system that fielded more than 2,100 calls a day. That’s according to the Associated Press. And at least some of the tips sent to the FBI about Smith, you know, the Portland shooter, were sent after that overhaul.
Miller: Can the FBI in Oregon point to any successes they’ve had in preventing likely gun violence? I know it’s a hard question to prove, that something didn’t happen because of something you did.
Wilson: That’s right. The FBI would refer to these as kind of non-events. So they are very hard to track, but there are a couple of cases they do point to. There was one recently, earlier this year, that they pointed to. They wouldn’t give us any details about exactly what that was, but they did say they were able to kind of conduct a threat assessment and sort of resolve that threat through tools like red flag laws. Also in 2019, they used the joint terrorism task force to temporarily petition to have a man’s weapon seized. This was written about in The Oregonian and Oregonlive. The man’s name was Sean Cofield. He stood outside Ted Wheeler’s house. He talked about wanting to kill antifa, and basically, yeah, his weapons were temporarily seized and he was committed to a veterans’ hospital. So they very much point to that as like a success story of something that, you know, violence that could have happened that did not.
Miller: Jonathan, just this week, federal lawmakers announced a deal that apparently has support of 10 republicans in the senate, meaning it could clear a filibuster if all the democrats support it. What would it do in terms of red flag laws?
Levinson: So it does a few things, and some have said this is a fairly modest proposal, but it’s generally being hailed as breaking this decades-long logjam blocking any and all gun legislation in congress. In its current form, the proposal creates a federal grant program for states to establish their own red flag laws, and the idea is to incentivize the remaining 31 states to implement some sort of risk protection order system. It’s gonna be tough in at least one state. Oklahoma passed an anti-red flag law in 2020, which explicitly prohibits red flag laws in the state, but I think the hope is that the grants would incentivize a handful of states for moving forward. The senate proposal would also extend background checks for people under twenty-one to include their juvenile records. It would close what’s known as the boyfriend loophole – currently, domestic violence offenders can’t own firearms, but only if they were married or lived with their partner. This would extend the prohibition to offenders who don’t fit those criteria, nationally, so federal law. The proposal would establish new gun trafficking offenses and clarify who meets the definition of a firearms dealer and is therefore required to run background checks. Then there’s a whole bunch of money in there for set asides for mental health care and school security.
Miller: Finally, you talked to Sandy Chung, the head of the ACLU in Oregon, about all of this. I’m curious what she saw, broadly, in this issue of a shooting, and then the revelations that the FBI at least had been made aware of numerous times of this future shooter?
Levinson: She wrestles with the civil liberties issues also, obviously. She said, you know, the heart of the problem in all of gun violence is that there’s just too many guns in the US. She emphasized the second amendment, the quote, ‘well-regulated’ part of the second amendment and says it’s not unconstitutional to regulate who can buy and own firearms. There are a tremendous amount of guns in the US, more than one per person. So far this year, there have been more mass shootings than days of the year. And Chung said that that level of gun violence is starting to infringe on other civil liberties. Normandale was a social justice march protected by the first amendment. She pointed to other shootings at churches and synagogues as examples of how this unchecked gun violence is starting to chill other protected speech and other protected rights. She said that there’s a growing number of people who are afraid of going to a march or going to church because of that threat of gun violence and that policymakers need to start getting at the heart of the problem, which is the amount of guns in the country.
Miller: Jonathan, Conrad, thank you.
Levinson / Wilson: You’re welcome Dave. Thank you. Dave.
Miller: Conrad Wilson and Jonathan Levinson cover guns and policing, and criminal justice and legal issues for OPB.
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