Immigration Article of the Day: Law Enforcement Gang Designations by Sharon Brett

Law Enforcement Gang Designations by Sharon Brett, 113 Va. L. Rev. __ (forthcoming 2027)

Abstract

This Article explores a widely used and highly scrutinized tool of contemporary American policing: the gang designation. President Trump's early 2025 immigration enforcement efforts brought heightened attention to how the federal government relies on these designations to justify initiating deportation proceedings. Yet, as this article shows, the gang designations used by the federal government often originate with state and local law enforcement agencies-not federal officials. And the consequences of these designations go far beyond the immigration system. Across the country, every day, police label, track, and surveil people that the police allege are members of criminal street gangs, usually based on what those people wear, who they associate with, the tattoos they have, or even the businesses they frequent. When police make these designations, they do not inform the designated person, nor do they offer an opportunity to contest the designation. Nevertheless, the gang designation carries with it a host of criminal and civil penalties that can impact all facets of daily life. 

In this Article, I argue that reliance on gang designations in the executive branch's mass deportation effort merits renewed scrutiny of the original source of the designations themselves: state and local police agencies. Drawing on an original fifty-state survey of statutes, I introduce a novel taxonomy of police scrutiny-expressive, relational, locational, and hearsay-driven-and identify the common elements across these regimes. This empirical foundation reveals how gang designations are often a product of unfettered officer discretion, without any contestation opportunity for the individuals who are designated. I then offer a comprehensive constitutional framework for reform, analyzing how gang designations are vulnerable to challenges under Procedural Due Process, the First Amendment, and other doctrines. Finally, by examining successful movements against gang designation regimes in cities like Chicago and Wichita, Kansas, this Article provides both an intellectual and practical roadmap for those seeking to challenge gang designations at a state and local level.