Martel Costello was a teenager living in Wichita, Kansas, when the Wichita Police Department (WPD) first added him to their gang intelligence database. Several of Costello’s family members—his father, a cousin—were already on the WPD’s radar as being gang-involved; spending time with them made Costello a target, too.
Costello discovered that he had been designated a “member of a criminal street gang” when he was arrested in 2016 for unrelated charges—a minor marijuana offense and possession of his aunt’s firearm. He told authorities that he was not, and had not ever been, a gang member. Nevertheless, once Costello landed in the system’s crosshairs, the label of “gang member” followed him for years, leading to sky-high bonds, harsh probation conditions, and extensive police harassment. After Costello attended his younger brother’s funeral, WPD officers arrested him for violating the terms of his probation. Other people in the database—including his own family members—had been present at the burial; Costello had therefore violated the terms of his probation.
In the spring of 2025, hundreds of people the federal government labeled as gang members were deported in high-profile actions that raised serious legal questions. But national outcry over these federal actions often missed a critical reality. Many of those alleged gang affiliations—like Costello’s—stemmed from discretionary decisions by state and local police.
Consider Kilmar Abrego Garcia, whose story made national headlines last March when the Trump administration deported him to El Salvador, despite a judge’s order six years earlier explicitly prohibiting his removal. Litigation ensued. The administration first argued they could not bring him back; then did; then rearrested Abrego Garcia once he was back in the United States, triggering court battles that continue today. But why was Abrego Garcia such a target of suspicion? Because, in 2019, local police officers in Maryland designated Abrego Garcia as a member of MS-13. The evidence? Abrego Garcia’s clothing, and the word of an unnamed informant.
The ability of state and local police to designate individuals as members of criminal street gangs is not new. Indeed, the proliferation of gang designations and the gang intelligence databases in which they are kept is a relic of “tough-on-crime” tactics and moral panics that took root in the 1980s and ’90s. Such “gang designation regimes” are, today, a feature of both state law and local policy, and are often implemented without any meaningful oversight. These regimes represent yet another black box of U.S. policing—a system in which an individual can be labeled, tracked, surveilled, and harassed based on innocuous criteria, such as the color of their clothes, the neighborhood in which they live, or the people to whom they are related.
Understanding how gang designation regimes work—and the police scrutiny they encourage—is important not only for questioning the deportations that have made national news, but for pushing back on the myriad penal and non-penal consequences that these regimes impose. And as the federal government increasingly turns its enforcement attention to individuals they do not claim to be associated with gangs, the impact such designations have is no less worthy of our attention, especially because of the profound non-immigration consequences they create.
In a forthcoming law review article, I examine how these gang designation regimes work—and how state statutes have fueled their spread across the country. The core problem starts with the fact that there is no uniform definition of the term “gang,” or consistent standard of enforcement, across the country. State statutes can be remarkably tautological: South Carolina, for instance, defines a “ criminal gang member” simply as someone who is an “active member of a criminal gang,” without explaining what “active” means. This vagueness is not a bug; it is a feature that allows for unfettered officer discretion.
Only about ten states have statutes that establish explicit criteria for law enforcement to designate an individual as a gang member, rather than merely defining gangs or gang activity more generally. Agencies in jurisdictions without governing state laws are typically free to adopt their own policies. With thousands of police agencies nationwide, it is impossible to know how the designation process unfolds in each. But if the states with existing legislation are any indication, laws governing gang designations tend to focus police attention on expressive symbols, social ties, geographic locational, and claims from third parties, such as informants or family members.
For example, in many states with gang designation laws, police are instructed to consider expressive activity, such as an individual’s “style of dress,” tattoos, or use of hand signs. Simply being seen with a “known gang member”—who may be a cousin, a sibling, or a childhood friend—is enough to support a designation, turning human connection into a liability. Some states also include locational criteria, directing officers’ attention to individuals who live in or who “frequent” certain neighborhoods. In many cases, these criteria fail to account for the fact that the person being scrutinized lives or works in the area. Third-party information, including reports from informants of unknown reliability or accusations of a family member, can also factor in designations.
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For those trapped in these databases, the consequences are immediate and life-altering. Being placed on a gang list can prevent someone from getting a job, passing a background check, receiving public housing benefits, and more. In Kansas, for example, alleged gang members receive an automatic minimum $50,000 bail if arrested for a person felony, regardless of whether the crime had any connection to gang activity. Those who are designated as gang members and put on probation, like Costello, are barred from associating with anyone else in the database—but are not always allowed to even know whom that might include. Violating their probation can result in years of imprisonment. Other jurisdictions, such as Florida and Illinois, expose alleged gang members to significant liability, allowing the state to pursue civil actions tied to gang-related statutory violations to recover damages and police costs.
And, perhaps most critically, these local labels are a primary engine for federal immigration enforcement. Under the current system, ICE can use a single unverified police report to summarily deport long-term residents.
Gang designations made at the local level become part of searchable electronic systems shared across hundreds of agencies. Officers can label someone a gang member in one jurisdiction, and that information is viewable by officers in agencies hundreds of miles away. Or, as was the case with Abrego Garcia, the designation becomes accessible to the federal government, often without the designated person’s awareness or ability to contest it. Gang designations thus feed the machinery of mass incarceration, ensnaring innocent people based on arbitrary criteria.
If these regimes are to be dismantled, communities must turn to both litigation and other tactics. As a matter of constitutional law, many of these gang designation regimes are vulnerable to attack. Many jurisdictions offer no notice and no opportunity to contest a designation. Relying on the “stigma-plus” legal doctrine, plaintiffs could argue that applying a per se defamatory label of “gang member”—which automatically restricts a protected liberty interest without a hearing—is a violation of the Fourteenth Amendment’s due process clause. Or, to the extent that these regimes force people to choose between seeing their family and risking prison for a probation violation, the regime could impermissibly infringe on the intimate human relationships the First Amendment is designed to protect. State constitutional arguments are possible, too.
Yet, as is the case with so many movements to attack and dismantle unconstitutional conduct by government officials—and especially the police—battles cannot be fought in courtrooms alone. Litigation challenging these regimes has been met with mixed results so far. Constitutional litigation is arduous and walks a tightrope of doctrines that often preclude relief. Communities that have successfully abolished their police department’s gang databases have done so by using a combination of advocacy tactics, using impact litigation as a catalyst and complement to on-the-ground organizing strategies.
In Chicago, for example, a class-action lawsuit highlighted the inaccuracies of the police database, but the ultimate victory—the total abolition of the program in 2023—was won through years of community organizing, door-knocking, and political lobbying. Individual cases led to municipal lobbying, which led to the class action lawsuit, which led to more lobbying. Unwilling to settle for a series of technically compliant yet harmful reforms, the broad coalition of community groups fought to abolish the gang designation regime altogether—and won when the city ultimately decided to scrap the program.
Similarly, in Wichita, litigation led by Costello and other plaintiffs challenged the constitutionality of the police gang list. The result was a settlement that stripped thousands of inactive or associate designations, shrinking the list from 5,500 individuals to just 151. In addition, as part of the agreement, procedures were put in place to tighten criteria, notify people of their status, and allow appeals. Significant outreach and partnership with grassroots community organizations resulted in community members understanding the impact of the settlement agreement and how those impacted by the gang database could work to clear their names. Advocates continue to push the legislature to repeal the statutory authority that allowed WPD’s database to exist. The fight continues.
Without question, the ubiquity of gang designations is just one component of the expansion of big data surveillance in the modern police state. And the use of this local data by federal immigration authorities is just one facet of a much larger problem. Gang designations are merely a brick in the broader foundation of surveillance and unchecked authority that is at the core of U.S. policing.
Responding to current events at the federal level, and the police state generally, obviously requires casting a tactically wide net. But even as the current administration moves far beyond targeting those it alleges to be members of criminal gangs, focusing on the role of state and local police in making and maintaining gang designations is no less important. Gang designations will endure—beyond current immigration crackdowns, inside and outside of the criminal legal system—unless we understand where they come from and direct at least some attention toward the project of their abolition. Armed with that awareness, advocates can engage in localized political and legal pressure to make gang designations a relic of the past.
