Reno-era policy kept Loughner off FBI list

By James V. Grimaldi
Wednesday, January 19, 2011

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." She said she could not release the memo because it is an internal document.

The Reno policy remained in place despite a 2007 law designed to improve the NICS. That law ordered all federal agencies to forward to the FBI the names of those ineligible under federal law to buy a gun from a licensed dealer. The law states that the names are to be sent at least quarterly, "notwithstanding any other law."

Despite the NICS Improvement Amendments Act, the Defense Department apparently did not change its policy. Drug test information is still not forwarded to the FBI to protect the privacy of the applicants, said Col. Thomas Collins, an Army spokesman.

"Currently, there is no statute that clearly stipulates what conditions or scenario would warrant a report about military applicants or recruits to the National Instant Criminal Background Check System," said Defense Department spokeswoman Eileen Lainez.

If Loughner had been put on the prohibited list in 2008, he would have remained there for one year under the rules of the Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces federal gun law. It will never be known if he would have tried to buy a second gun after being denied the first.

Few drug abusers wind up on the NICS list as being ineligible to purchase a firearm because of that abuse or addiction. The current number of people who are listed in that database is 2,092, or less than 1 percent of the 6 million names, according to NICS data. Of those who tried to buy firearms between 1998 and 2008 but were prohibited, drug abusers made up about 8 percent, or 65,000, the data show.

Strong said that's partly because many drug abusers are in the database as felons, who are also prohibited from buying firearms from licensed dealers. Strong added that Loughner's 2007 arrest for possession of drug paraphernalia was not reported by the state to the NICS. The charge was dismissed after he entered a drug-diversion program.

Anyone can end up on the list if it can be determined that the person has abused drugs within a year, Strong said. For example, a current or former member of the armed forces can be added to the list if a soldier is disciplined, arrested, convicted at court-martial or discharged for drug abuse.

The Arizona case has prompted two New York politicians, Mayor Michael R. Bloomberg (I) and Democratic Sen. Charles E. Schumer (D), to call for the military to report drug offenders to the FBI-run background check list. "We should fix this reporting loophole," Schumer wrote Sunday to Attorney General Eric H. Holder Jr. Justice spokesman Matthew Miller said the department was reviewing Schumer's letter.

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