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DOJ Removes Key Progressive Provisions From New Federal Law Enforcement Guidance After Daily Caller Exposé

Attorney General Garland And Justice Department Officials Recognize National Missing Children's Day

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James Lynch Contributor
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The Department of Justice (DOJ) announced an updated version of its anti-discrimination guidance for federal law enforcement on Thursday without major progressive provisions exposed by a series of reports by the Daily Caller.

Earlier this month, the Caller obtained internal draft documents showing the Justice Department’s plan to prevent federal officers from using crime statistics in law enforcement and limit the ability of the Federal Bureau of Investigation (FBI) to infiltrate terrorist groups. A source who requested anonymity due to fear of professional retribution provided the documents to the Caller. (RELATED: EXCLUSIVE: DOJ Proposal Would Ban FBI Agents From Using Community Crime Statistics In Law Enforcement, Docs Show)

The new measures were part of the Justice Department’s draft proposal of its new guidance for federal law enforcement regarding the use of “Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity.” (RELATED: EXCLUSIVE: New DOJ Policy Proposal Would Limit FBI Infiltration Of Terrorist Groups, Docs Show)

Additionally, the Caller reported on the DOJ’s proposal to add nationality to its list of protected characteristics and expand the scope of law enforcement activities covered by the new guidelines. Progressive activist organizations met with the DOJ on May 18 after calling for an expanded version of the guidance with provisions resembling the draft proposals reported by the Caller.

Key progressive demands in the draft proposals revealed by the Daily Caller were not included in the final version of the guidance released by the Justice Department. Nationality is not part of the list of protected characteristics in the updated “Guidance For Federal Law Enforcement Agencies Regarding The Use Of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, Gender Identity, And Disability.”

“Accordingly, this Guidance prohibits consideration of a person’s race, ethnicity, gender, national origin, religion, sexual orientation, gender identity, or disability status unless specific conditions are present. Those conditions are described in the Standard set forth below. Further, it prohibits the use of generalized assumptions or stereotypes about individuals or groups bearing these characteristics as a basis for law enforcement decision-making,” the DOJ guidance asserts.

Nationality is distinct from national origin, which is based on culture and ancestry rather than a suspect’s citizenship, the guidelines specify in a footnote.

Law enforcement activities covered by the guidelines include “routine or spontaneous” decisions such as traffic stops. The guidance was, however, not expanded to explicitly cover law enforcement practices beyond the “routine or spontaneous” designation, as the draft documents indicated and progressive activists demanded.

Federal officers are permitted to “be on the lookout” for specific individuals identified in part by their protected characteristics, when law enforcement has specific information from trusted sources, the guidance says. The document lists specific scenarios involving types of information to illustrate the ways in which officers can apply the guidance to the best of their ability.

FBI agents and other federal law enforcement officers will be permitted to use ethnicity when choosing sources for infiltrating foreign terrorist groups if they are overwhelmingly composed of a single ethnicity, a practice that was singled out for being discriminatory in draft versions the Daily Caller previously reported.

“Similarly, in conducting activities directed at a specific criminal organization or terrorist group whose membership has been identified as overwhelmingly possessing a listed characteristic, law enforcement can consider such facts in taking investigative or preventive steps aimed at the activities of that criminal organization or terrorist group,” the guidance states.

In the draft documents, observations about “high crime areas” were identified as a “facially neutral” pretext for racial bias. The final guidance explains how focusing on areas with high crime rates is most frequently associated with this concern, before listing examples when officers can use crime statistics about certain communities.

Data on crime statistics is allowed to be used if the decision to focus law enforcement activities on certain neighborhoods is based on reliable information rather than racial stereotypes. An example cited by the DOJ guidelines involves an effort to reduce gun violence by identifying the neighborhoods where shootings are more likely to take place.

“The decision to focus law enforcement activity on that neighborhood is not based on race, but rather on reliable and trustworthy data and information. Officers can properly decide to enforce all laws in that area, including less serious offenses, in order to reduce gun-related crime,” the guidelines lay out.

Reliance on community crime statistics for law enforcement activities was explicitly banned in earlier drafts because of concerns about “bias” in arrest rates, the Daily Caller previously reported. The new guidance does prohibit officers from racially profiling suspects based on their protected characteristics, a measure touted by the DOJ in its announcement.

“The updated guidance prohibiting racial profiling by federal law enforcement agencies sets forth limited circumstances when federal law enforcement agents or officers may consider a protected characteristic, adds disability as a protected characteristic, expands application of the guidance beyond law enforcement officers to all federal law enforcement personnel engaged in or supporting federal law enforcement activities, and sets benchmarks and timelines for the development and implementation of training, data collection, and accountability provisions,” the Justice Department said in a press release.

The DOJ’s new guidance concludes with plans for training officers within six months, collecting data on implementation and holding officers accountable in response to complaints.

The policy applies to federal law enforcement and non-federal law enforcement officers when they participate in federal law enforcement task forces. Progressive groups previously requested the DOJ apply the standards to state and local law enforcement bodies that receive federal funding or participate in joint operations with federal agencies to combat alleged discrimination by police.

“While our work is not done, we are proud of the important changes we have made over this past year to update our internal policies and better provide our state and local partners with the resources and support they need to keep communities safe from violent crime, advance transparency, and build community trust,” Attorney General Merrick Garland stated.

“As we remember the life of George Floyd on the third anniversary of his death, the Justice Department renews our commitment to advancing accountability in law enforcement and safeguarding the civil rights of all Americans. We recognize that we have a responsibility to lead by example,” Garland added. (RELATED: EXCLUSIVE: DOJ Plans To Commemorate George Floyd’s Death By Announcing New Law Enforcement Policy)

The announcement comes on the three year anniversary of George Floyd’s death at the hands of  Minneapolis police officer Derek Chauvin. The Caller first reported the DOJ’s decision to honor Floyd by announcing the new anti-discrimination guidance on May 25, one year after President Joe Biden signed an executive order directing the DOJ to reassess the 2014 version of the guidance.

Biden’s executive action on “Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety” told the DOJ to assess the 2014 anti-discrimination guidance and determine if it needed to be updated. The DOJ and other federal agencies were ordered to report to Biden within 180 days if they decided the policy needed to be amended.