Clinton-Era Policy Kept Jared Loughner Off FBI List

Over the past two weeks, several people have wondered why Jared Loughner was able to purchase a weapon even after being turned down by the U.S. military when he failed a pre-enlistment drug test. Well, now we know that it was because of a policy established by Bill Clinton’s Justice Department 17 years ago:

An old policy memo from the Clinton administration paved the way for accused Arizona gunman Jared Loughner to buy his first firearm.

Put in place by then-Attorney General Janet Reno, the policy prohibited the military from reporting certain drug abusers to the FBI, which manages the national list of prohibited gun-buyers, federal officials said.

Loughner attempted to enlist in the Army in December 2008 but was rejected because he failed a drug-screening process, Army officials said. Within a year, Loughner bought a Harrington & Richardson shotgun from Sportsman’s Warehouse in Tucson.

In November, he went back to the same store and purchased a Glock 19 – the one he is accused of using in the Jan. 8 rampage that killed six and wounded 13, including Rep. Gabrielle Giffords (D).

Federal law since 1968 has prohibited gun sales to anyone who is an unlawful user of or addicted to a controlled substance. Licensed dealers have been required to check the backgrounds of gun-buyers since 1994. But the Reno policy told federal agencies not to report people who had voluntarily given drug tests for fear it would deter them from seeking treatment, federal officials said.

“We do get reports from the military,” said John A. Strong, the FBI section chief who oversees the National Instant Criminal Background Check System (NICS). “Although if you are trying to get into the military and flunk the drug test, that’s a voluntary test and you are exempted. The [Justice Department] has decided to exempt voluntary drug tests. They did not want to have a chilling effect on those seeking treatment.”

Robyn Thiemann, deputy assistant attorney general in the Office of Legal Policy, said, “It was a policy determination that was made in the Reno administration

Now, I can understand the policy reasons for not wanting to punish people who voluntarily submit to a drug test because you want to encourage them to do that so that they will go for addiction treatment. At the same time, though, I am sort of at a loss as to why a test that you’re required to take before you can be enlisted in the military is in any way a “voluntary” test. Moreover, it would seem to me that there ought to be a difference recognized between drug testing connected to drug treatment programs, and this type of situation. We can’t know if putting Loughner on this list would’ve really stopped him — he might have tried to get a weapon illegally — but it would’ve been better than the alternative, no?

FILED UNDER: Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. mantis says:

    Now, I can understand the policy reasons for not wanting to punish people who voluntarily submit to a drug test because you want to encourage them to do that so that they will go for addiction treatment. At the same time, though, I am sort of at a loss as to why a test that you’re required to take before you can be enlisted in the military is in any way a “voluntary” test. Moreover, it would seem to me that there ought to be a difference recognized between drug testing connected to drug treatment programs, and this type of situation. We can’t know if putting Loughner on this list would’ve really stopped him — he might have tried to get a weapon illegally — but it would’ve been better than the alternative, no?

    All good points. I also don’t quite understand why an addict seeking treatment would need to submit to a drug test at all. I’m pretty sure drug treatment facilities are willing to take someone’s word for it if they seek help (is there a problem with non-addicts “vacationing” at treatment centers?). Also, wouldn’t those seeking treatment be covered by medical privacy laws?

  2. Tano says:

    “I am sort of at a loss as to why a test that you’re required to take before you can be enlisted in the military is in any way a “voluntary” test”

    Seems rather obvious to me. You are volunteering to join the military.

    The implication here is that no one who ever flunks a drug test can ever legally buy a gun. Is this really true? Are you sure that if the military had reported his flunk, that he would have been forbidden to buy the weapon? For how long?

  3. ratufa says:

    If take a job that I know ahead of time requires me to move to another city, am I being forced to move or is the move voluntary? What if I was complaining that my job required me to take a crappy salary? There isn’t any firm answer to the question of how much an action has to “cost” a person before it’s no longer voluntary, but it seems plausible that the cost of not joining the military would not exceed that threshhold.

    As for the whole “drug test” thing, the law says that you can’t sell a gun to somebody who:

    “is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); ”

    so perhaps one shouldn’t focus solely on the drug test angle.

  4. James Joyner says:

    I don’t know the case law here but it strikes me that there are 5th Amendment issues at stake. (Although, my hazy reflection of ConLaw classes from 25 years ago was that it was damned near a dead letter unless you were actually testifying in court.)

    Here, the military has an administrative purpose for asking people to reveal information and subject themselves to a test. But the cost of failure, if reported to the FBI, would be criminal penalties.

    If nothing else, you’d think the military would have to take pains to warn people that, if they give up their 5th Amendment rights against self-incrimination, they could be banned — for life! — from buying a handgun. And, presumably, any other penalties we concoct down the road for those who haven’t been found guilty of violating any laws but nonetheless have admitted to or been show to have violated them.

  5. Michael says:

    We can’t know if putting Loughner on this list would’ve really stopped him — he might have tried to get a weapon illegally — but it would’ve been better than the alternative, no?

    I don’t know, do you have a reason to think it would be better than the alternative, or are you just jumping on the “doing something is better than doing nothing” bandwagon? Loughner aside, would putting everybody who fails an enlistment drug screening on the FBI lists be a good thing?

  6. PD Shaw says:

    Failing a drug test doesn’t mean you have ever used drugs. If you are going to condition penalties for failing a drug test, then you need to provide subsequent procedural assurances that the results mean something.

    Here, in Illinois, a mental health professional can report certain behavior in certain narrow contexts to local law enforcement, who can then take emergency action to seize the FOID card and any weapons registered in that name. That in turn creates a right to a judicial process to determine whether that action should be affirmed.

    Mental health professionals will only do this in a very narrow set of circumstances, because of rules of confidentiality and the desire not to deter therapy.

  7. Aaron Gee says:

    >The [Justice Department] has decided to exempt voluntary drug tests. They
    >did not want to have a chilling effect on those seeking treatment.”

    If you are in any treatment for drug addiction then you do not qualify to purchase a firearm. Period. Why is this an issue at all and what is the “chilling effect”?

    If someone is in treatment, they should successfully complete that treatment before they can purchase a firearm. Their subsequent removal from any no sale list should/would be part of the successful completion of their prescribed program. This would be an incentive for people ordered to get treatment, and also an incentive to seek treatment if they have been put on the list.

  8. TG Chicago says:

    It’s possible that if this Clinton-era policy wasn’t in place, Loughner might not have gotten a gun.

    It’s almost certain that if the Clinton-era assault weapons ban was still in place, Loughner would not have gotten the extended magazine that allowed him to shoot and kill more people than he otherwise would have.

  9. Trumwill says:

    At the same time, though, I am sort of at a loss as to why a test that you’re required to take before you can be enlisted in the military is in any way a “voluntary” test.

    He voluntarily enlisted in the military. That’s the “voluntary” part.

    I would need to no more, but so far I don’t disagree with this law. If I apply for a job and have to take a drug test, I don’t want my potential employer sending the results to a national database to come up again when I try to buy a gun. I would be less inclined to apply for a job at any place that would do that. And not because I would actually fail the drug test.