Critics say African American activist Christopher Daniels has been held since December because FBI policed his views.

A US judge has ordered that Christopher Daniels, considered by many to be the first person arrested under the FBI’s Black Identity Extremist (BIE) designation, be released from pre-trial detention and dismissed the indictment against him.

Daniels, a cofounder of the Huey P Newton Gun Club and Guerilla Mainframe (GMF), two armed organisations based in Dallas who regularly protest against alleged police brutality, “is entitled to be released from pre-trial detention based on the dismissal of the indictment”, Judge Sidney Fitzwater wrote in the order issued on May 1.

Daniels was arrested in December by the FBI and Bureau of Alcohol, Tobacco and Firearms for possessing rifles after being convicted of misdemeanour domestic assault in Tennessee in 2007.

Misdemeanour and felony domestic assault convictions bar US citizens from legally owning firearms under federal law.

The GMF, as well as activists and civil rights advocates, have called him the first prosecution under the BIE designation.

Daniels’s lawyers argued that differences between Tennessee’s state laws regarding misdemeanour domestic assault and the federal government’s definition of the same crime meant the Tennessee conviction “does not qualify”, according to court documents.

Under Tennessee law, causing another person to “reasonably fear imminent bodily injury” can be considered a misdemeanour domestic assault, which “does not necessarily” include the use of force, the court document states.

Fitzwater gave the government until mid-day on May 3 to provide further reason to continue detaining Daniels. It does not appear the government filed a further motion.

GMF had not responded to Al Jazeera’s request for comment on Daniels’ release at the time of publication.

Controversy over BIE

An FBI intelligence assessment (PDF), dated August 2017, defined BIEs as African Americans inclined to commit acts of violence against police officers, “which they perceived as representative of the institutionalized oppression of African Americans”.

The document appears to have been drafted in response to a July 2016 shooting in Dallas that left five police officers dead, as well as others in Louisiana, Indiana and Missouri.

The designation has caused controversy with activists, civil rights organisers and US politicians. The intelligence assessment was sent to thousands of police departments across the US.

Erroll Southers, a former FBI agent who specialised in counterterrorism, told Al Jazeera that the FBI already considered groups comprising eco-terrorists, white supremacists, anarchists, anti-abortion rights activists and black nationalists as possible “domestic terror” threats.

But while a designation like white supremacist applies to certain groups, “BIE is applied more broadly.”

Southers was concerned that African Americans protesting against police violence could be labelled as threats under the designation.

After receiving the intelligence assessment, law-enforcement officers could consider the BIE designation as “actionable information”, the former FBI agent said.

This means that the BIE designation could be used to acquire search warrants or engage in surveillance, Southers said.

Although Daniels was arrested for “illegally possessing firearms”, the reasoning given by federal prosecutors for his continued detention focused on social media posts in which Daniels criticised police officers.

Transcripts from a court hearing in December show that Daniels was under FBI surveillance for two years before his arrest due to online videos posted on far-right news outlets that showed the activist at rallies while armed.

Michael German, another former FBI special agent who focused on “domestic terrorism” and fellow with the Brennan Center for Justice, told Al Jazeera he never understood how the government was successful in having him held in pre-trial detention in the first place.

German previously told Al Jazeera that the government’s use of Daniels’s social media rhetoric as a reason to keep him detained highlighted “why the BIE framing that the FBI has developed is problematic.

“It was a very counterproductive use of the FBI’s counterterrorism powers,” German said on Friday.

Officer deaths in 2018

German, like Southers, found the BIE designation “problematic”. Neither of the former FBI agents has found a reason for the designation.

The Congressional Black Caucus, a group of African American legislators, revealed during a briefing on the BIE designation in March that high-level FBI officials were unable to explain how it came to be.

Southers told Al Jazeera the FBI’s intelligence assessment featured a number of alleged BIEs, but he found the reasoning behind classifying them as such lacking.

Furthermore, at least 25 police officers have been killed by gunfire in the line of duty in 2018, an increase from 2017, which saw 16 officers killed in the same period, according to the Officer Down Memorial Page, which tracks police deaths.

However, there is no evidence to suggest that any of the 25 police officers killed were killed by suspects related to alleged “BIE” organisations or groups.

“I do not recall any incidents from this year that would qualify” as involving BIEs, Southers concluded.