The Department of Justice has drafted a new proposal as part of its updated guidelines for anti-discrimination that would bar all agents at the Federal Bureau of Investigation as well as other federal law enforcement agencies from using any crime stats in their law enforcement activities.
The Daily Caller show exclusively obtained DOJ documents about the matter from a source who was familiar with the drafting of the proposal and the overall proceedings. That source didn’t want to be named, out of fear of being retaliated against.
The new policy from the DOJ would increase restrictions against using protected characteristics during activities of law enforcement. This would now include using “facially neutral factors as a proxy” for some protected characteristics.
All law enforcement officers at the federal level, including those working for the FBI, wouldn’t be allowed to use someone’s “actual or perceived race, ethnicity, gender, nationality, national origin, religion, sexual orientation, sex characteristics, disability status or gender identity [in] any degree,” according to the documents.
This new ban would apply even in a scenario where it could be lawful for the agents to use protected characteristics.
One of the areas that was cited as an example in the documents was in “high crime areas” that have been subject typically to “aggressive law enforcement.”
According to the documents, using these protected characteristics either indirectly or directly to discover suspects “reflects and invites bias.” As such, that would be prohibited under the new guidelines that the DOJ is proposing.
Agents would be allowed to receive an exception to these rules if information they receive about a particular suspect who has protected characteristics ends up passing a specific criteria regarding information related to that suspect.
One of those criteria is that the information about the suspect “must be relevant to the precise locality and time frame.”
That being said, the community crime statistics that are readily available and commonly used were explicitly identified as pieces of information that wouldn’t qualify for an exception based on geography, according to the documents.
“[O]fficers and agents should not use statistics about arrest rates in particular communities when making decisions about where and how to focus their activities. Current and historical patterns of discriminatory law enforcement have led to higher rates of arrest in certain communities, particularly African American communities.”
The documents further state that these crime stats are “inherently biased and unreliable,” saying that utilizing them in law enforcement “reproduces the very discrimination” that the policy put forth by the DOJ is designed to get rid of.
Since 2014, all federal law enforcement agents have been able to “properly consider” any protected characteristic, which is a more flexible overall standard than straight prohibition. This new policy, though, will apply to a wider array of activities for law enforcement agents than the DOJ guidelines that were released in 2014 did.
Back then, agents at the FBI were advised to use these guidelines for activities that were both “routine or spontaneous.”