“Marked and Misjudged: How Tattoos, Attire, and Association Are Twisting Justice in the American Legal System”

Profiling Personal Characteristics in Criminal and Immigration Law: Evidence and Constitutional Limits

Introduction

Modern law enforcement and immigration authorities often rely on personal characteristics – such as tattoos, clothing, language, and mannerisms, as proxies for criminal affiliation or immigration status. Tattoo-based profiling in particular has drawn scrutiny in gang enforcement and border security contexts, raising questions about the evidentiary relevance of such markers and the constitutional rights of individuals who bear them. This article expands the analysis beyond tattoos to examine profiling based on attire, linguistic traits, and behavior, especially in criminal investigations and immigration enforcement. It explores how courts treat these indicators under the Federal Rules of Evidence (notably Rules 401, 403, 404, and 702) and examines the constitutional protections implicated under the First, Fourth, Fifth, and Fourteenth Amendments. In addition, this article delves into the related issue of collective punishment and guilt by association in American law, analyzing legal constraints on criminalizing or surveilling individuals due to their proximity to protests, riots, or dissenting groups. The discussion will outline statutory and doctrinal limits on “guilt by association” and the constitutional bar on punishing individuals based solely on group identity or shared ideology.

Profiling Based on Personal Characteristics

Profiling based on personal characteristics involves drawing inferences about a person’s criminality or immigration status from outward signs. Such profiling can range from police stopping someone because of “gang attire” or tattoos, to immigration agents targeting individuals who speak a certain language or display particular mannerisms. These practices raise issues of both efficacy and fairness in law enforcement. Below, we consider several common personal-characteristic profiles, tattoos, clothing, language, and mannerisms, and how they have figured in criminal and immigration law.

Tattoos and Body Markings

Tattoos have long been used by police and prosecutors as evidence of gang membership or criminal association. For example, a tattoo of gang symbols or slogans may be introduced to show a defendant’s affiliation with a criminal enterprise. In United States v. Pierce, a RICO gang prosecution, the government introduced images of the defendant’s tattoos – including one reading “Y.G.K.” (for “Young Gunnaz Killer”) – to establish his loyalty to a gang and motive for violence against rivals (Speech as evidence, rap videos, and tattoos - The Washington Post) (Speech as evidence, rap videos, and tattoos - The Washington Post). The defendant argued this violated his First Amendment rights by penalizing expressive conduct, but the Second Circuit rejected that claim, holding that the tattoos were used only as evidence of gang participation, not for the expression itself.

Generally, courts deem tattoo evidence admissible if it is relevant (Rule 401) to a material issue like identity, motive, or gang connection, and if its probative value is not substantially outweighed by the risk of unfair prejudice (Rule 403.

However, the prejudicial impact of tattoo evidence can be significant – a jury might improperly view a tattoo as proof of bad character or propensity for violence. Rule 404(a)’s ban on character propensity evidence often bars using tattoos simply to suggest the defendant’s criminal disposition. In Dawson v. Delaware, the U.S. Supreme Court set a constitutional limit on such evidence. There, during a capital sentencing, the prosecution introduced the defendant’s tattoo signifying membership in the Aryan Brotherhood prison gang, even though the gang affiliation was unrelated to the crime. The Court held this violated the First Amendment because the evidence served no purpose except to associate the defendant with a racist gang and thus inflame the jury’s passions. Dawson stands for the principle that abstract beliefs or associations (like a tattoo symbolizing a group) cannot be used by the State merely to show a defendant’s bad character or ideology; the evidence must be tied to the issues in the case to be admissible.

In the immigration context, tattoo-based profiling has also raised due process concerns. Immigration officers have sometimes treated tattoos as evidence of gang membership to justify detention or removal. Reports indicate that the Department of Homeland Security circulated profiles assigning point values for tattoos or even certain styles of dress as indicators of gang affiliation among migrants (DHS claims these tattoos show Venezuelan gang membership. The tattoo artists who did them are confused | The Independent) (DHS claims these tattoos show Venezuelan gang membership. The tattoo artists who did them are confused | The Independent). In one notable case, a DACA recipient’s status was revoked after ICE agents misidentified his “La Paz – BCS” tattoo (naming his birthplace, La Paz in Baja California) as a gang tattoo. He was detained as a purported gang member, prompting a federal lawsuit challenging the government’s evidence and motives. Such cases underscore the risk of error when officials lean on tattoos without contextual expertise. In immigration proceedings (which are civil in nature), the formal rules of evidence do not strictly apply, but fundamental fairness under the Fifth Amendment’s Due Process Clause requires that any evidence, including tattoos, be reliable and probative of actual wrongdoing. Uncorroborated assumptions that a tattoo signifies criminal intent or gang status can lead to wrongful detentions, potentially violating due process if the individual is effectively being penalized for expression or association.

Clothing and Attire

Clothing and attire can also serve as proxies for criminal profiling. Police may consider a person’s mode of dress (such as gang colors, insignia, or even fashions like baggy pants or hooded sweatshirts) as part of a suspicion profile. In Arizona v. Johnson, for example, an officer conducting a traffic stop observed a passenger’s blue clothing and accessories suggestive of the Crips gang, and noted a police scanner in his pocket. These factors, combined with the location and context, led the officer to frisk him for weapons, a step the Supreme Court found justified by reasonable suspicion that the individual was armed and dangerous due to possible gang affiliation. Attire commonly associated with criminal groups can thus contribute to Fourth Amendment reasonable-suspicion analysis, although courts caution that clothing alone is rarely enough. Under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, an officer must have specific, articulable facts indicating criminal activity afoot; wearing gang colors in a high-crime area might be one factor, but without more, it may describe too large a category of innocent people to satisfy Terry’s demands ([PDF] Racial Profiling and the Constitution - Chicago Unbound) (noting that a person’s clothing being “suspicious” must be tied to particular facts, not stereotypes).

Attire can also be a form of expression under the First Amendment, which adds another layer to the analysis. The Supreme Court has held that clothing can be protected speech if it conveys a particularized message understood by observers (for instance, a jacket bearing an anti-war slogan is protected “speech”). But not all clothing qualifies as expressive conduct. In a Fifth Circuit case, United States v. Mackey, a defendant argued that Border Patrol had stopped her at a checkpoint due to her attire in violation of the First Amendment. She was wearing a plain tank top and pants that, she claimed, the agent found unusual. The Fifth Circuit rejected her argument, finding that her generic clothing was not “sufficiently expressive” to trigger First Amendment scrutiny (5th Circuit rejects First-Amendment clothing-based defense in Texas border stop | The Free Speech Center) (5th Circuit rejects First-Amendment clothing-based defense in Texas border stop | The Free Speech Center). The court contrasted her case with one where an NRA bumper sticker on a vehicle was deemed expressive – an officer cannot lawfully stop a car solely for a political bumper sticker, as that would be targeting speech. Thus, when clothing does communicate a message (e.g. a political T-shirt, an armband, or attire worn as symbolic protest), police action based solely on that message raises First Amendment issues. Absent expressiveness, however, clothing is generally viewed as a non-speech attribute, and profiling based on dress is analyzed under equality or Fourth Amendment principles rather than free speech.

In terms of evidence law, clothing evidence is admissible if relevant (Rule 401) – for example, showing that a suspect wore a distinctive outfit matching a witness description, or that a defendant donned gang colors to signal allegiance in a gang-related crime. But like tattoos, clothing can carry unfair prejudice. Courts have reversed convictions where the prosecution needlessly highlighted a defendant’s gang-related attire to suggest bad character. If the only purpose is to imply “this person is the type to commit crime,” Rule 404(a) forbids it. On the other hand, evidence that a defendant wore a disguise or special outfit to commit a crime is typically admissible as proof of identity or intent, since that is a proper non-character inference. Judges often perform Rule 403 balancing when gang attire is presented – weighing its probative value for issues like motive or membership against the risk that jurors will punish the defendant for being in a gang regardless of the charged offense. In sum, clothing may be probative, but courts remain wary of profiling by attire leading to guilt by association in the courtroom.

Language and Linguistic Traits

Language can be a telltale personal characteristic as well. In immigration enforcement, the language one speaks (or an accent) has frequently been used, wrongfully, as a sole basis for suspicion of unlawful status. The Supreme Court condemned this in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), where Border Patrol agents had stopped a vehicle near the Mexican border based on the occupants’ “Mexican appearance.” The Court ruled that appearance or language alone – essentially proxies for ethnicity or national origin – do not constitute reasonable suspicion of illegal presence. While agents may consider language as one factor (for instance, if combined with other information about a border crossing), it cannot be the sole factor without violating the Fourth Amendment’s prohibition on unreasonable seizures ([PDF] Opinion No. 01-213 - California Department of Justice). Similarly, a local police officer cannot stop and question someone about immigration status merely for speaking Spanish in public; that would amount to ethnic profiling forbidden by equal protection and the Fourth Amendment.

In criminal investigations, language often comes into play when defendants use slang, code words, or dialect that carry implications of criminal activity. Drug traffickers or gang members, for example, might use seemingly innocuous words (“food,” “toy,” “chicken”) as code for illicit goods or activities. Prosecutors routinely call experts, typically law enforcement officers with experience in narcotics or gangs, to interpret such jargon for the jury. Under Rule 702, an expert witness may testify about the meaning of argot or hand signs used by a criminal organization, as this is considered specialized knowledge that can help the jury understand evidence. Courts have generally allowed this type of expert testimony, recognizing the expertise of officers in decoding criminal slang, but they also require that the testimony meet reliability and relevance standards (the expert’s interpretations must be grounded in a reliable methodology, not mere speculation). For instance, in United States v. Mejia, the Second Circuit cautioned that gang experts should not simply serve as “proxies” to introduce hearsay or sweep in all manner of prejudicial information under the guise of interpretation. The expert’s role is limited to elucidating matters beyond an average juror’s knowledge (such as the structure of a gang or the meaning of symbols and code words), consistent with Rule 702’s helpfulness requirement.

One notable area where language and expression intersect with evidence law is the use of a defendant’s creative or expressive works (like rap lyrics) in criminal trials. Rap lyrics, poetry, or social media posts in certain dialects can reflect a persona or artistic expression but are sometimes offered as evidence of motive or confession. Courts have split on this practice. As Eugene Volokh observed, courts will admit such speech as evidence if relevant to issues like intent or gang affiliation, as long as its probative value outweighs the danger of unfair prejudice (Speech as evidence, rap videos, and tattoos - The Washington Post). For example, violent rap lyrics authored by a defendant were deemed admissible in a drug conspiracy case to show the defendant’s knowledge of and participation in the drug trade (United States v. Moore, 639 F.3d 443, 447–48 (8th Cir. 2011)). Conversely, the New Jersey Supreme Court in State v. Skinner overturned a conviction that relied heavily on the defendant’s rap lyrics, warning that fictional or hyperbolic verses should not be treated as literal confessions of guilt, lest we unfairly assume that “Bob Marley actually shot a sheriff” simply because he sang about it. Rule 403’s balancing test is crucial here – the court must decide whether the expressive content’s value in proving an element (e.g., the defendant’s familiarity with gang rivalries or violent methods) is substantially outweighed by the risk that the jury will use it irrationally (e.g., to conclude the defendant is a bad person deserving punishment regardless of actual guilt). Additionally, Rule 404(b) is invoked if prior statements or expressive acts are used to show motive or identity; judges must instruct juries not to misuse such evidence as proof of general propensity.

Mannerisms and Behavior

A person’s conduct, their gait, gestures, or nervous demeanor, can raise an officer’s suspicions or be introduced as circumstantial evidence of consciousness of guilt. Police commonly cite “furtive movements,” avoidance of eye contact, or evasive behavior as factors justifying a stop or search. Under Fourth Amendment case law, mannerisms contribute to the totality of circumstances for reasonable suspicion, but courts remain cautious that such assessments can be inherently subjective or prone to cultural misinterpretation. In Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme Court held that sudden, unprovoked flight upon noticing police in a high-crime area was a pertinent suspicious factor. By contrast, simply appearing nervous or walking in a particular posture, without more, often carries minimal weight since many law-abiding people exhibit nerves during police encounters. Lower courts have noted that behaviors like “looking over one’s shoulder” or “acting jittery” might be innocent or might mean different things in different communities; thus, on their own they seldom amount to reasonable suspicion. Still, combined with other specific indicators (time, place, matching a suspect description, etc.), mannerisms can tip the balance toward a finding of reasonable suspicion or probable cause.

In the courtroom, a defendant’s behavior or demeanor is generally not introduced as evidence of guilt except in narrow circumstances (such as evidence of flight, concealment, or resisting arrest, which can imply consciousness of guilt). Even then, courts instruct juries with caution that there may be many reasons a person might flee or avoid police that do not necessarily reflect guilt of the specific crime. Mannerisms as a form of profiling are more relevant to street-level police decisions than to evidentiary proof at trial. One exception is when an aspect of behavior is itself at issue – for instance, in immigration cases, if a person displays knowledge of gang hand-signs or uses gang gestures on social media, that might be introduced in an asylum or removal proceeding to argue the person was involved in gang activity. But here too, tribunals must carefully evaluate reliability: distinguishing bravado or second-hand mimicry from actual gang affiliation is difficult and implicates due process if a person is erroneously labeled and denied relief by association.

Evidentiary Treatment of Profiling Indicators (Rules 401, 403, 404, 702)

The Federal Rules of Evidence provide the framework for determining whether personal characteristic evidence, tattoos, attire, language, behavior can be shown to a jury, and if so, for what purpose. We outline the key rules and how courts have applied them in profiling contexts:

• Rule 401 (Relevance): Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. This is a low threshold. Tattoo, clothing, or language evidence often clears this bar if it links the defendant to a group or motive related to the crime. For example, a tattoo of the victim’s name would be relevant to identity, just as speaking a rare language could be relevant to proving someone’s country of origin in an immigration case. The relevance must be to a fact in dispute: gang affiliation is relevant in a gang conspiracy prosecution or to prove motive (rivalries, retaliation), but the same gang tattoo may be irrelevant in a wholly unrelated offense. In Dawson, the Aryan Brotherhood tattoo had no connection to the murder at issue, rendering it legally irrelevant except for character, hence its admission was unconstitutional and also violative of basic relevancy principles.
• Rule 403 (Unfair Prejudice vs. Probative Value): Even if relevant, evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion, or misleading the jury. Profiling indicators often carry high prejudice. Gang evidence (tattoos, colors, hand signs) is notorious for provoking strong, negative reactions from jurors. Courts have often undertaken Rule 403 balancing in such cases. The general approach is: if the evidence is central to proving an element (e.g. a gang enhancement or conspiracy), courts tend to admit it but try to mitigate prejudice (through limiting instructions or sanitizing overly inflammatory aspects). If the evidence is only tangentially relevant, courts lean toward exclusion. For instance, multiple courts have warned against the overuse of rap lyrics or social media posts where they provide only marginal insight into a defendant’s actions but might paint them as generally violent or immoral. State courts, too, under analogous rules have reversed convictions when the prosecution introduced, say, extensive gang paraphernalia and no strong link to the crime, finding the prejudice dwarfed the probative value. The Rule 403 balance is context-specific, but the guiding principle is to avoid guilt by association, an improper inference that because the defendant has a certain trait or association, they must have committed the crime.
• Rule 404(a) (Character Evidence) and 404(b) (Other Acts): Rule 404 embodies the fundamental ban on using a person’s character or prior acts to prove action in conformity on a particular occasion. Profiling evidence can trigger this ban if not carefully handled. A tattoo indicating prior gang membership, or testimony that the defendant associates with gang members, is essentially evidence of a character trait (“this person is a gang member” implies a bad character or propensity for violence). As such, Rule 404(a) forbids using it to say “he’s the type of person who would commit this crime.” However, Rule 404(b) allows evidence of acts or associations for non-character purposes – such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Prosecutors frequently argue that gang-related traits show motive (e.g. the crime was done to benefit the gang, or out of rivalry) or identity (markings and attire connect the defendant to a known gang that committed the crime). Courts then must ensure the jury only uses the evidence for that limited purpose. In United States v. Abel, 469 U.S. 45 (1984), the Supreme Court approved the use of gang affiliation evidence to show a witness’s bias: the defendant and a witness both belonged to the Aryan Brotherhood, and the witness might lie to protect a fellow gang member. This was a proper use (bias impeachment) rather than a forbidden propensity inference. By contrast, introducing the same gang evidence solely to smear the defendant’s character would violate Rule 404. The trial judge’s role is critical in policing this line – often via instructions or by excluding especially prejudicial details that are unnecessary for the legitimate purpose.
• Rule 702 (Expert Testimony): As noted, expert testimony is often used to interpret profiling evidence. Under Rule 702 and the Daubert standard, the court must ensure the proffered expert is qualified and that their testimony is reliable and will assist the trier of fact. Gang experts (typically police gang unit officers) may testify about the significance of a tattoo or logo, the hierarchy of a gang, or the meaning of certain jargon, on the theory that an average juror would not otherwise understand the import of, say, a five-point star tattoo or a particular hand sign. Courts have generally deemed such expertise admissible, treating gang sociology as a form of specialized knowledge. In United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000), the Ninth Circuit upheld the use of a gang expert who testified about the defendant’s gang’s territory, colors, and practices, finding this expertise reliable based on the officer’s long experience and helpful to the jury’s understanding of witness intimidation in that case. Nevertheless, courts are also aware of the potential for overreach. In United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), the Second Circuit warned that an expert cannot simply be a conduit for hearsay or speculation. The expert there had narrated extensive information about MS-13 gang crimes that he learned from others, crossing from expert analysis into a factual summation better suited for closing argument. The appellate court vacated parts of the testimony, emphasizing that Rule 702 does not give experts free rein to testify to anything just because it relates to gangs – the testimony must be the product of reliable principles and methods applied to the facts of the case, and it must not usurp the jury’s role by effectively telling the jury that the defendant is guilty because of gang membership.

In sum, evidence law seeks to strike a balance: personal characteristic evidence can be powerful proof, but it is strictly regulated to ensure it does not lead the jury astray. The rules demand that such evidence be closely tied to legitimate issues in the case (relevance), used for proper, limited purposes rather than to show bad character, and presented in a fair manner (through careful weighing of prejudice and, where needed, expert context or limiting instructions). These evidentiary checks resonate with constitutional concerns, to which we now turn.

Constitutional Protections Implicated by Profiling Indicators

The use of personal characteristics in profiling and evidence can implicate several constitutional rights. The First Amendment protects freedom of speech and association, the Fourth protects against unreasonable searches and seizures, and the Fifth and Fourteenth protect due process and equal protection under the law. This section examines how each of these amendments constrains the use of clothing, language, tattoos, and other personal traits by the government.

First Amendment: Free Expression and Association

Freedom of Speech/Expression: Personal appearance and speech often intersect. Tattoos, clothing, and even certain mannerisms may constitute expressive conduct or speech, bringing the First Amendment into play. A tattoo can be a form of personal expression – indeed, courts have recognized tattooing as protected artistic expression under the First Amendment. Clothing can also carry ideological messages (wearing a Black Lives Matter T-shirt or a rainbow armband is plainly expressive). When the government targets an individual because of the expressive content of their attire or tattoos, it raises First Amendment alarms. For example, if police monitored or harassed someone for wearing a shirt criticizing law enforcement, that would be a content-based restriction on speech. A real-world illustration is Cohen v. California, 403 U.S. 15 (1971), where the Supreme Court overturned a conviction for disturbing the peace after a man wore a jacket with an offensive anti-draft slogan in a courthouse. The garment was clearly expressive, and the state could not criminalize the message it conveyed. Similarly, laws that ban specific clothing styles often prompt First Amendment challenges: several municipalities’ attempts to outlaw “saggy pants” (low-slung, baggy trousers, typically associated with Black youth culture) have been criticized as targeting a form of cultural expression and symbolic speech. While courts have not uniformly seen saggy pants as protected expression, some view it as a fashion choice not intended to communicate a particular message, the ACLU and others have argued that such attire can be an expression of identity or protest, and that bans on it invite arbitrary enforcement and racial profiling (ACLU Reminds Iberville Parish That Clothing is Protected Expression).

In the context of profiling, First Amendment doctrine does not give one immunity from law enforcement attention simply because one’s behavior is expressive. The key distinction is between using speech as evidence of a crime and punishing someone for the speech itself. The Supreme Court in Wisconsin v. Mitchell, 508 U.S. 476 (1993), explained that the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent” (id. at 489). Thus, a person’s gang-themed speech (songs, writings, social media posts) or symbolic attire can be used to prove something like motive for a gang-related shooting without offending the First Amendment, so long as the person is not being prosecuted merely for that speech. As discussed, courts will admit such evidence with caution (per Rules 403 and 404), but the constitutional rule is that speech intertwined with criminal conduct can be introduced as proof of the defendant’s state of mind or identity . What the First Amendment squarely forbids is punishing abstract advocacy or symbolism itself. For instance, wearing gang colors in public, without more, cannot be criminalized simply because it might intimidate others or signal association, that would be akin to punishing symbolic speech. Any regulation of expressive conduct must meet the high bar of strict scrutiny if it targets content or viewpoint. This principle protects, for example, a protester’s right to wear all black and a face covering as a political statement, or a motorcycle club member’s right to display their club patch, absent a specific unlawful act.

Freedom of Association: Beyond individual expression, the First Amendment (and related Fourteenth Amendment concepts) protect the right to freely associate with others for expressive or lawful purposes. Profiling by personal characteristics often is essentially association-based – an officer infers that because a person wears a certain color or tattoo, they belong to a group (a gang, a political organization, etc.). The Constitution generally bars the government from penalizing mere membership in a group absent specific unlawful conduct. As the Supreme Court famously stated, “guilt by association is a philosophy alien to the traditions of a free society and the First Amendment itself.” This means that the state cannot impose sanctions on an individual solely due to their associations. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court held that holding civil rights activists liable for the violent acts of others during a boycott, merely because they belonged to the same boycott movement, would violate the First Amendment: “For liability to be imposed by reason of association alone without proof that an individual’s association incited illegal action or indicated control over it, is impermissible.” 458 U.S. at 920, 932. Similarly, in Schware v. Board of Bar Examiners, 353 U.S. 232 (1957), the Court overturned a denial of a law license that was based on the applicant’s past membership in the Communist Party, stressing that association with an unpopular group, without evidence of personal wrongdoing, could not justify exclusion from the bar (id. at 244–47). These cases underscore that the First Amendment shields individuals from being adjudged guilty or penalized simply for who they associate with or what group they belong to.

In practical terms, this affects profiling in a few ways. Police may observe associative symbols (and even use them to inform an investigation), but they must be careful not to cross into penalizing association. For example, issuing an injunction or order that forbids known gang members from congregating in certain areas might impinge on association rights if it punishes lawful gathering. Some jurisdictions have civil “gang injunctions” that restrict the movements of gang affiliates; while courts have upheld some as a way to abate public nuisance, they face scrutiny if overly broad. Any criminal charge that hinges on group membership (such as a statute making it illegal to “be a gang member”) would be flatly unconstitutional. Laws must target specific criminal acts (e.g., conspiring with gang members to commit a crime, or actively furthering a gang’s illegal aims) rather than status or membership alone. This is tied not only to the First Amendment but also to due process (discussed below). Freedom of association also strongly limits government surveillance or blacklistings based on group membership. During the civil rights era, the state of Alabama sought the NAACP’s membership lists, but the Supreme Court in NAACP v. Alabama, 357 U.S. 449 (1958), ruled that forcing disclosure of members would chill association in violation of the First Amendment. By extension, government programs that surveil or compile databases of individuals simply for attending mosques, protests, or political meetings run the risk of infringing associational privacy and deterring people from exercising their First Amendment rights.

Fourth Amendment: Searches, Seizures, and Profiling

The Fourth Amendment requires that searches and seizures by the government be reasonable. Profiling criteria like clothing, language, and mannerisms often come into play when officers assess whether they have reasonable suspicion or probable cause to detain or search someone. The courts have developed standards to prevent such profiles from devolving into unchecked discrimination or hunch.

A recurrent theme is that an observed personal characteristic can contribute to a finding of reasonable suspicion only if, in context, it genuinely suggests criminal activity. Characteristics with strong innocent explanations (race, ethnicity, common styles of dress) carry little weight. As noted, Brignoni-Ponce forbade reliance on “Mexican appearance” as the sole ground for a border stop; the Court enumerated other factors (patterns of traffic, behavior of the driver, information on recent border crossings) that should form the core of any reasonable-suspicion calculus, with ethnic appearance only a slender reed that “alone” cannot justify a stop (422 U.S. at 886-87). In United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000) (en banc), the Ninth Circuit went further, cautioning that in areas with large Latino populations near the border, ethnicity or language should be given no weight because it would unjustly subject a huge number of innocent people to intrusion (id. at 1132-33). Likewise, speaking Spanish or another foreign language in public is not reasonably indicative of crime; absent more, detaining someone for that reason likely violates the Fourth Amendment and equal protection.

When it comes to attire, courts have generally said that simply dressing in a way that police associate with criminals (motorcycle jackets, gang colors, hoodies) does not create reasonable suspicion. If an officer has independent cause (say, a description of a suspect that includes clothing), then the clothing match is relevant. But a general “fits the profile” rationale has been struck down in many instances as too vague. For example, the D.C. Circuit criticized police for stopping individuals merely because they wore loose-fitting clothes that could conceal weapons, as this characteristic applied to a substantial portion of the population and was not tied to specific information about a crime. The stop-and-frisk litigation in New York City (e.g. Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013)) revealed that vague justifications like “furtive movements” or “high-crime area + clothes common among gang members” were often cover for racial profiling, and courts have required more concrete justification to meet the Terry standard.

The Fourth Amendment does allow police to use training and experience to interpret certain behaviors or traits as suspicious. For instance, an officer might justifiably take note that a person with a gang insignia tattoo is hanging around a known drug corner exchanging items with passersby, as part of the total picture suggesting drug dealing. But the touchstone is always whether the inference is reasonable and particularized. A person cannot be stopped merely for having a gang tattoo any more than they could be stopped merely for having an anti-police slogan on their shirt, in both cases, the Constitution demands individualized suspicion of wrongdoing, not categorical judgments.

Once a person is lawfully stopped or arrested, the Fourth Amendment has less to say about what evidence can be used against them (that becomes more a matter of evidentiary rules and Fifth Amendment due process). However, one should note that if profiling crosses into harassment or repeated stops without cause, victims may have recourse via Fourth Amendment claims under 42 U.S.C. § 1983 or Bivens. In practice, proving a pattern of unlawful stops targeting people for their appearance can be difficult, but notable cases have succeeded when statistical and anecdotal evidence of discriminatory profiling was overwhelming (as in Floyd, where the NYPD’s stop practices were found unconstitutional under both the Fourth and Fourteenth Amendments).

Fifth and Fourteenth Amendments: Due Process and Equal Protection

Due Process (Individual Guilt and Fair Procedures): The Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to states) both guarantee that no person shall be deprived of life, liberty, or property without due process of law. A core component of due process in criminal law is the requirement of individualized guilt. The Supreme Court has repeatedly affirmed that our system “scorns the idea of guilt by association.” In Scales v. United States, 367 U.S. 203 (1961), the Court upheld a statute criminalizing active membership in a subversive organization only by reading into it a requirement that the individual intentionally engaged in the group’s illegal aims. The Court stressed that, in our jurisprudence, “guilt is personal” and requires personal intent or action (id. at 224-25). Punishing a person for mere membership or belief would violate due process because it would create a form of status crime or thought crime. The companion case, Noto v. United States, 367 U.S. 290 (1961), overturned a conviction where the evidence showed the defendant was a member of the Communist Party but did not prove he specifically intended to further any violent overthrow; absent that specific intent, punishing him would be guilt by association, offensive to due process (id. at 299-300).

This principle imposes a constitutional check on profiling practices. If the government were to arrest or detain someone solely because “people with that tattoo are gang members” or “people who attend those protests are troublemakers,” without evidence that this individual engaged in wrongdoing, it would run afoul of due process. For instance, in the hypothetical (but historically resonant) scenario of mass arrests of protesters because a few individuals in the crowd broke windows, due process demands that each arrestee be shown to have individually committed a criminal act or intentionally aided it. Detaining everyone based on proximity or shared ideology would treat the innocent and guilty alike, essentially a collective punishment incompatible with American justice. We will discuss “collective punishment” more fully below, but it suffices here to note that due process embodies the rejection of collective or vicarious guilt in criminal law.

Procedural due process also requires fairness in how evidence is used. If the government relies on a personal characteristic to deprive someone of liberty (e.g., denying bail because of a tattoo indicating gang ties), the individual must have an opportunity to challenge that inference. Secret evidence or undisclosed “profiles” violate due process. In immigration proceedings, which are civil but high-stakes, due process requires that the immigrant be allowed to contest claims of gang affiliation or criminal association. Vague laws that effectively criminalize a status or appearance characteristic may be struck down under due process as well. The Supreme Court in City of Chicago v. Morales, 527 U.S. 41 (1999), invalidated a city ordinance that prohibited loitering in a public place by suspected gang members (who failed to disperse when ordered). The law was void for vagueness, partly because it gave police unfettered discretion to label people as gang members and arrest them without clear standards – a due process violation (id. at 64). The ordinance’s flaw was essentially profiling by statute: it targeted “loiterers” who appeared to be gang members. The Court found this unacceptable because it lacked specific criteria or an actus reus beyond mere presence and association, resulting in arbitrary enforcement.

Equal Protection: The Fourteenth Amendment’s Equal Protection Clause (and the Fifth Amendment’s implicit equal protection component) prohibits the government from intentionally discriminating against individuals based on protected characteristics like race, ethnicity, or religion (absent a compelling interest met by narrowly tailored means). Profiling by personal traits often overlaps with racial or ethnic profiling. When an officer uses language, attire, or demeanor as a proxy for race or national origin, equal protection issues arise. A clear example is when state highway patrols were found to use minor traffic excuses to stop Black or Latino drivers more frequently (the “driving while black” phenomenon). Such practices, if proven to be driven by race, violate equal protection. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the subjective motives of officers (e.g., racial bias) do not factor into the Fourth Amendment analysis of a single stop so long as there is objective cause. However, the Court noted that equal protection challenges remain available to address systemic discriminatory stops (id. at 813). That is, a defendant generally cannot suppress evidence just by alleging the officer profiled him by race, but he could file a civil rights claim or seek injunctive relief against a department’s pattern of discrimination.

If a profiling factor is closely tied to race or national origin (language being an obvious example), courts will scrutinize its use. The law draws a distinction between a factor that correlates with race and race itself: for instance, “wearing a turban” is obviously linked to religion/ethnicity, and police targeting turban-wearers would essentially be religious profiling subject to strict scrutiny. The government must show a truly compelling reason, which is rarely possible outside of specific national security contexts. More commonly, equal protection appears in gang or protest contexts when authorities single out certain groups. While gang membership is not a protected class (gangs are not an immutable or protected status under the Constitution), issues arise if law enforcement actions against gangs disproportionately impact racial minorities. A facially neutral anti-gang initiative that results overwhelmingly in arrests of young men of color might prompt claims of racial discrimination. Plaintiffs would need to show intentional discrimination impact alone is insufficient. But discriminatory intent can sometimes be inferred from patterns and contemporaneous statements. In the context of protests, if authorities treat a Black Lives Matter gathering more harshly than a comparably situated gathering of a different group, that disparate treatment could ground an equal protection claim if done intentionally due to the group’s race or message.

In short, equal protection demands that profiling not be a cover for discrimination. Laws and practices that classify people by traits like language or appearance can violate equal protection if those traits are proxies for protected categories. The interplay of equal protection and the First Amendment is also notable: profiling often implicates both (e.g., targeting a Muslim individual because he speaks Arabic is both religious/ethnic profiling and potentially punishing association with a religious community). Courts can analyze under one or both clauses, but the condemnation of guilt by association and invidious profiling is common to both.

Collective Punishment and Guilt by Association in U.S. Law

Expanding our focus from individual profiling, we now address the broader concept of collective punishment – imposing liability or sanction on individuals due to their membership in or association with a group, rather than their personal actions. In the United States legal tradition, collective punishment and guilt by association are largely anathema, constrained by constitutional principles and specific legal doctrines. This part examines how U.S. law treats attempts to criminalize or surveil individuals for their proximity to protests, riots, or dissent, and what limits exist on attributing guilt based on group identity or ideology.

The Principle of Personal Guilt

American law’s repudiation of collective guilt has deep roots. Chief Justice Charles Evans Hughes, in a 1920 address criticizing the expulsion of socialist legislators from the New York Assembly, articulated the guiding ethos: “it is the essence of our institutions of liberty that guilt is personal and cannot be attributed to the holding of opinions or mere association without overt acts.” The Supreme Court has echoed this sentiment countless times. In Schneiderman v. United States, 320 U.S. 118 (1943), the Court refused to strip citizenship from an admitted communist in the absence of proof of personal disloyal acts, rejecting the idea that membership in an ideology alone made one un-American. In Wieman v. Updegraff, 344 U.S. 183 (1952), the Court struck down a state loyalty oath that barred anyone who was a member of a “subversive” group from public employment, noting that indiscriminate exclusion based on organizational ties was unfair: even innocent membership in an organization with unlawful aims could lead to punishment, a result the Due Process Clause will not tolerate (id. at 191–92).

These cases and others establish that individuals in the U.S. cannot be adjudged guilty or penalized solely on the basis of others’ actions or a group label. The Bill of Attainder Clause of the Constitution (Art. I, § 9, cl. 3 for federal, § 10, cl. 1 for states) also reflects this principle by prohibiting legislatures from singling out persons or groups for punishment without trial – a historical safeguard against collective or political retribution by law.

Criminal Liability and Group Membership: Statutes and Case Law

When Congress or state legislatures have targeted group membership or association in statutes, courts have usually required a narrowing construction to avoid sweeping in innocent association. A prime example is the Smith Act of 1940, which among other things made it a crime to be a knowing member of an organization that advocates the violent overthrow of the government. In Scales v. United States, mentioned earlier, the Supreme Court upheld a conviction under this act only after interpreting the law to apply strictly to active members who had the specific intent to bring about the illegal ends (367 U.S. at 229). The Court explicitly rejected the notion of punishing “nominal, passive, purely technical” membership, because to do so would be incompatible with due process. Justice Harlan’s opinion in Scales reasoned that punishing mere association would run afoul of the Fifth Amendment: “In our jurisprudence guilt is personal. … Membership, without more, in an organization engaged in illegal advocacy cannot be punished.” (id. at 224-26). In a companion loyalty-oath case, Elfbrandt v. Russell, 384 U.S. 11 (1966), the Court struck down an Arizona law requiring state employees to disavow organizations with illegal goals. Justice Douglas wrote, “A law which applies to membership without the `specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.” (id. at 19, citations omitted). These rulings carve out a constitutional rule: active membership can be criminalized only if the individual actively intends to accomplish the unlawful aims, a high bar that spares those who join for social reasons, naïveté, or sympathy with lawful aspects of a group.

Applying this in modern contexts, consider laws addressing street gangs or terrorist organizations. Many jurisdictions have enacted gang enhancement laws or made it a separate offense to participate in a “criminal street gang.” Courts generally uphold such laws only if they require knowledge of the gang’s criminal activities and some active participation or furtherance of those crimes by the defendant. California’s Street Terrorism Enforcement and Prevention (STEP) Act, for example, makes active participation in a criminal gang a crime, but the state supreme court has required that the defendant must do so with intent to assist felony conduct by gang members (Cal. Penal Code § 186.22; see People v. Castaneda, 3 P.3d 278 (Cal. 2000)). If a statute were to punish someone merely for being documented as a gang member, without any act or intent, it would likely be void for the same reasons Scales and Elfbrandt were. On the federal side, the Racketeer Influenced and Corrupt Organizations Act (RICO) allows prosecution of individuals for being part of a criminal enterprise, but crucially it still requires proof that each defendant personally committed at least two predicate criminal acts in furtherance of the enterprise (18 U.S.C. § 1962; Salinas v. United States, 522 U.S. 52, 62-63 (1997)). RICO thus avoids pure guilt by association by tying liability to one’s own acts, even as it targets group crime.

The “material support” statutes in the terrorism context (8 U.S.C. § 1189, 18 U.S.C. § 2339B) present a harder question: they criminalize providing support or resources to designated terrorist organizations, even if the support is not intended for violent ends. In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court upheld such a law as applied to teaching legal dispute resolution to a terrorist group, reasoning that any support could free up resources for illegal acts (id. at 36-39). Critics argue this comes perilously close to guilt by association – punishing individuals for working with or speaking to disfavored groups. The majority in Holder emphasized the specific intent requirement (the statute required knowledge of the group’s designation as terrorist, though not intent to further its terrorism), and found the law satisfied strict scrutiny given national security interests. Nevertheless, Holder is somewhat exceptional and has been criticized for diluting the “personal guilt” principle in the First Amendment context. Outside of terrorism, courts remain extremely wary of laws that impose guilt by mere association or political affiliation.

Proximity to Protests, Riots, and Dissent: Collective Liability Issues

Collective punishment issues often arise in the context of public demonstrations and civil unrest. When a protest turns violent or spills into riotous behavior by some, authorities sometimes respond with broad measures against all present – curfews, mass arrests, or surveillance of activist groups afterwards. The question becomes: to what extent can individuals be held liable for the actions of others in a crowd or movement?

American criminal law generally requires individual mens rea and actus reus. Merely being physically present at the scene of a crime does not make one a criminal, absent a legal duty to act or an agreement to join in. Thus, if a peaceful protester is at a demonstration and a few people begin looting stores, the peaceful protester cannot be charged with burglary or vandalism simply by association. The prosecutor would need to show that the protester intentionally participated in the criminal aspect (for example, by acting as a lookout or encouraging the rioters). The traditional doctrines used to hold groups accountable are conspiracy and accomplice liability, both of which demand intentional collaboration in the illegal plan. A conspiracy conviction requires proof beyond a reasonable doubt of an agreement to commit an unlawful act and an overt act in furtherance by some conspirator. Attending the same protest is not an agreement to riot, unless there is evidence of a prior plan or coordinated intent.

Many states have statutes against riot or unlawful assembly that can ensnare those present at a disorderly gathering. Typically, riot is defined to require that the person knowingly participated in an assembly where violence occurred with the intent to help it along. For example, the Model Penal Code § 250.1 defines riot as participating with two or more others in a course of disorderly conduct with an intent to commit or facilitate a felony or to prevent official action. Mere presence is insufficient; there must be an affirmative purpose to engage in or advance the group’s unlawful conduct. Courts interpreting riot statutes often emphasize this intent element to avoid punishing the innocent protester caught up in events. In the 1960s, civil rights activists were sometimes charged with “inciting to riot” for speeches that drew large crowds where some violence later occurred – these charges largely failed, as in the famous trial of Chicago Eight after the 1968 Democratic Convention disturbances. The jury and courts have been reluctant to convict unless clear evidence showed specific incitement or planning of violence by the defendants (in that case, most charges were eventually dismissed or overturned on appeal).

Another contemporary issue is the use of collective or preventative measures by law enforcement against protest groups. During large demonstrations, police have occasionally used “kettling” tactics to corral and arrest everyone in a certain area after an order to disperse is given, on the theory that those who did not disperse are part of an unlawful assembly. While courts have upheld some mass arrest actions when properly preceded by clear warnings and where it was unsafe or impractical to single out instigators, they have also imposed liability on police departments for indiscriminate mass arrests that sweep up lawful demonstrators. For instance, after the 2000 World Bank protests in Washington, D.C., a class of protesters won a settlement for unlawful mass arrest when police encircled and detained hundreds without distinguishing those breaking the law from those peacefully assembled. The Fourth Amendment and due process principles require that an arrest of each individual be predicated on probable cause, if the only “cause” is that the person was in the geographic vicinity of others’ illegal acts, that falls short.

Surveillance and listing of individuals due to involvement in protests or dissident groups also raise constitutional concerns, though they are harder to challenge in court because of the covert nature and standing issues. In the 1970s, revelations of the FBI’s COINTELPRO program, which surveilled and disrupted groups like the NAACP, anti-war organizations, and others led to public outcry and reforms. While surveillance itself (observing or recording public events, infiltrating groups undercover) is not a literal punishment, it can chill First Amendment association and has occasionally been limited by courts. For example, the D.C. Circuit in Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), held that plaintiffs had a valid First Amendment claim against FBI agents who orchestrated a scheme to disrupt and discredit their anti-war organization (though parts of the case were later affected by procedural issues). Today, if law enforcement were to maintain a list of “political agitators” and impose extra screening or investigative measures on them solely for their association, affected individuals could argue a violation of their First Amendment rights unless the government shows a compelling reason. The bar for such a claim is high courts generally give police leeway to monitor public activities for safety – but blatant cases of targeting based on ideology (say, a city policy to surveil all mosque congregants) could be struck down as religious discrimination and an infringement of free exercise/association.

Constitutional Limits on Guilt by Association

To synthesize the above, several constitutional provisions converge to limit collective punishment and guilt by association:

• First Amendment: Protects the right to peacefully assemble and associate for expressive ends. The government cannot sanction an individual for the illegal conduct of others in a group unless the individual intentionally incited or aided that conduct. As the Supreme Court stated in Claiborne Hardware, even when some members of a group commit violence, “the presence of protected activity does not immunize violence, but the State must distinguish between those who engage in the protected activity and those who resort to violence” (458 U.S. at 908). The First Amendment thus demands a sort of individualized consideration: only those whose personal expression or association crosses into unprotected territory (such as incitement to imminent lawless action, per Brandenburg v. Ohio, 395 U.S. 444 (1969)) may be punished; others who remain within constitutional bounds must be left alone, despite their association with law-breakers.
• Fourth Amendment: Prevents arbitrary detention of groups without particularized suspicion. A general dragnet of “everyone in this group” is unreasonable unless each person’s involvement in illegality is supported by facts. This is why group search warrants or broad crowd arrests are constitutionally fraught. The Fourth Amendment enforces individualized suspicion through its probable cause and particularity requirements.
• Due Process (Fifth/Fourteenth Amendments): Requires that criminal culpability be personal. It also voids laws that are so broad or vague that they capture innocent conduct or allow punishment for status. In context, due process would invalidate a law that says “any person who is a member of Organization X is guilty of a crime,” because it would punish membership without proof of personal wrongdoing. Additionally, due process encompasses fairness in attributing liability: doctrines like vicarious liability in criminal law are heavily disfavored (except in limited contexts like felony-murder or corporate liability, which have their own justifications and still often require foreseeability or proximate causation linking the individual to the outcome).
• Equal Protection: Prohibits the state from targeting individuals for punishment or investigation solely because they belong to a disfavored racial, ethnic, religious, or ideological group. The internment of Japanese-Americans during World War II is often cited as a grave violation of this principle – in Korematsu v. United States (1944), the Supreme Court infamously upheld the internment, accepting the government’s race-based group punishment under the guise of military necessity. That decision is now viewed as a shameful aberration; in 2018 the Supreme Court formally repudiated Korematsu as “gravely wrong” and not to be followed (see Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)). The repudiation of Korematsu underscores that collective punishment based on ancestry or ethnicity is unconstitutional. In more routine scenarios, equal protection means authorities cannot impose curfews or punishments on one group (say, a particular minority community or political group) that are not imposed on others, absent a compelling interest.

In conclusion, U.S. law strongly disfavors profiling and guilt by association, though it does allow group characteristics to be used in measured ways for investigative purposes and permits enhanced penalties for group-related criminal conduct when tied to individual culpability. The evidentiary rules temper the use of personal characteristics in court, ensuring relevance and fairness, while constitutional doctrines protect individuals from being targeted or convicted solely for who they are, what they look like, or whom they align with. As society continues to wrestle with gang violence, terrorism, and civil unrest, these legal principles serve as a bulwark against the erosion of individual rights in favor of expedient but overbroad group-based enforcement. Even in turbulent times, the Constitution demands that we judge individuals for their own deeds, not the sins or symbols of others.

Conclusion

Profiling based on tattoos, clothing, language, or mannerisms sits at the fraught intersection of effective law enforcement and individual rights. Such personal characteristics can provide clues to criminal activity or affiliation, and courts have allowed their use within careful bounds requiring that they be truly relevant to an issue at trial and not used merely to invite prejudicial inferences about character. The Federal Rules of Evidence, especially Rules 403 and 404, act as gatekeepers to prevent juries from being swayed by stigma or association rather than evidence of the defendant’s actual conduct. Likewise, constitutional safeguards in the First, Fourth, Fifth, and Fourteenth Amendments constrain the government’s ability to target individuals for who they are or whom they associate with. These safeguards are reinforced by a long-standing rejection of collective guilt in American jurisprudence.

In expanding the analysis from tattoo-based profiling to other personal traits and to the broader doctrine of guilt by association, we see a consistent theme: the law’s insistence on individualized justice. Markers of group identity, be they ink on skin, the cut of one’s clothes, an accent, or a raised fist salute may attract government attention, but ultimately our legal system requires that any deprivation of liberty be justified by the individual’s own unlawful actions or intentions. Collective punishment, whether in the form of sweeping police dragnets or laws criminalizing membership, is at odds with this principle. Courts have invalidated or narrowed such practices, reinforcing that the Constitution protects the freedom to speak, to dress, to belong, and to assemble, so long as one does not step into the territory of specific unlawful acts.

Going forward, debates will persist as new forms of profiling emerge (for instance, algorithms analyzing social media language patterns to predict gang membership, or facial recognition identifying individuals at protests). But the legal analysis will continue to be guided by the doctrines discussed here. Each piece of evidence or law enforcement method must be tested against evidentiary standards and constitutional imperatives. Is the profile trait truly probative of a crime, or just a proxy for bias? Is the individual being judged on their own conduct, or on the reputation of a group? By rigorously asking these questions, courts help ensure that our justice system does not slip into condemning the innocent by association or stifling lawful expression and association out of fear. The jurisprudence on profiling and guilt by association reaffirms a fundamental promise of American law: each person stands before the law on their own, equal in rights and accountable for their own choices, not the misdeeds of others or the markings on their skin.

Bibliography

Cases

• Arizona v. Johnson, 555 U.S. 323 (2009).
• Arizona v. United States, 567 U.S. 387 (2012).
• Brandenburg v. Ohio, 395 U.S. 444 (1969).
• Chicago v. Morales, 527 U.S. 41 (1999).
• City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality) (reaffirming that evidence must support legislative assumptions; cited for contrast in expressive context).
• Cohen v. California, 403 U.S. 15 (1971).
• Dawson v. Delaware, 503 U.S. 159 (1992).
• De Jonge v. Oregon, 299 U.S. 353 (1937).
• Elfbrandt v. Russell, 384 U.S. 11 (1966).
• Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
• Healy v. James, 408 U.S. 169 (1972).
• Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
• Illinois v. Wardlow, 528 U.S. 119 (2000).
• Korematsu v. United States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S. Ct. 2392 (2018).
• NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
• NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
• Noto v. United States, 367 U.S. 290 (1961).
• Salinas v. United States, 522 U.S. 52 (1997).
• Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
• Scales v. United States, 367 U.S. 203 (1961).
• Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
• Terry v. Ohio, 392 U.S. 1 (1968).
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• United States v. Abel, 469 U.S. 45 (1984).
• United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
• United States v. Hernandez, 847 F.3d 1257 (10th Cir. 2017) (example of court rejecting stop based solely on Spanish speaking).
• United States v. Mackey, 915 F.3d 1237 (9th Cir. 2019) (border stop case discussing First Amendment claim – 5th Cir. case involving clothing).
• United States v. Mejia, 545 F.3d 179 (2d Cir. 2008).
• United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000) (en banc).
• United States v. Moore, 639 F.3d 443 (8th Cir. 2011).
• United States v. Pierce, 785 F.3d 832 (2d Cir. 2015).
• United States v. Robel, 389 U.S. 258 (1967).
• United States v. Sokolow, 490 U.S. 1 (1989).
• Wieman v. Updegraff, 344 U.S. 183 (1952).
• Wisconsin v. Mitchell, 508 U.S. 476 (1993).

Statutes and Rules

• U.S. Const. amend. I (Free Speech and Assembly Clauses).
• U.S. Const. amend. IV.
• U.S. Const. amend. V (Due Process Clause).
• U.S. Const. amend. XIV, § 1 (Due Process and Equal Protection Clauses).
• 18 U.S.C. § 2101 (Anti-Riot Act of 1968).
• 18 U.S.C. § 2339B (Providing material support to terrorist organization).
• 18 U.S.C. § 2385 (Smith Act provision on advocating overthrow, historically applied to group membership).
• 18 U.S.C. §§ 1961–1962 (Racketeer Influenced and Corrupt Organizations Act).
• Cal. Penal Code § 186.22 (California STEP Act – gang participation offense).
• Fed. R. Evid. 401.
• Fed. R. Evid. 403.
• Fed. R. Evid. 404.
• Fed. R. Evid. 702.

Secondary Sources

• Eugene Volokh, Speech as Evidence, Rap Videos, and Tattoos, Washington Post (May 12, 2015) (analyzing First Amendment challenges to use of defendants’ expression as evidence) (Speech as evidence, rap videos, and tattoos - The Washington Post) (Speech as evidence, rap videos, and tattoos - The Washington Post).
• David L. Hudson Jr., 5th Circuit Rejects First Amendment Clothing-Based Defense in Texas Border Stop, Free Speech Center (May 21, 2018) (5th Circuit rejects First-Amendment clothing-based defense in Texas border stop | The Free Speech Center) (5th Circuit rejects First-Amendment clothing-based defense in Texas border stop | The Free Speech Center).
• Guilt by Association, in Encyclopedia of the American Constitution (Leonard W. Levy ed., 1986) (historical survey of guilt by association in jurisprudence) (Guilt By Association | Encyclopedia.com) (Guilt By Association | Encyclopedia.com).
• ACLU of Louisiana, Press Release: ACLU Reminds Parish That Clothing is Protected Expression (Nov. 13, 2018) (critiquing anti-saggy-pants ordinances as violating First Amendment and encouraging racial profiling) (ACLU Reminds Iberville Parish That Clothing is Protected Expression).
• James E. Robertson, “Pushing the Limits of Rule 702: The Reliability of Gang Expert Testimony Regarding Membership in Criminal Street Gangs”, 34 St. Mary’s L.J. 581 (2003) (discussing admissibility and due process concerns of gang expert evidence).
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Footnotes

1. Dawson v. Delaware, 503 U.S. 159, 165–67 (1992) (holding that introducing the defendant’s abstract beliefs/associations without linkage to the offense violated the First and Fourteenth Amendments). See also United States v. Bey, 188 F.3d 1, 6–7 (1st Cir. 1999) (cautioning that evidence of membership in a hate group must be closely scrutinized for relevance and prejudice).
2. See Ramirez Medina v. U.S. Department of Homeland Security, No. 2:17-cv-00218 (W.D. Wash. filed 2017) (alleging due process and equal protection violations in arrest of DACA recipient based on false gang affiliation claim). The individual was ultimately released, and the government’s evidentiary basis (a misinterpreted tattoo) was widely criticized; see Nina Shapiro, Gang Tattoo or Hometown Pride? Seattle Times, Mar. 28, 2017, at A1.
3. Arizona v. Johnson, 555 U.S. 323, 327–28, 334–35 (2009) (during a lawful traffic stop, officers may frisk a passenger upon reasonable suspicion that he is armed and dangerous; observing gang colors contributed to suspicion of weapon possession due to gang propensity for firearms).
4. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505–06 (1969) (black armbands worn by students to protest war were “akin to pure speech” and protected); Cohen v. California, 403 U.S. 15, 18 (1971) (“one man’s vulgarity is another’s lyric” – jacket with expletive was protected expression).
5. United States v. Brignoni-Ponce, 422 U.S. 873, 884–87 (1975) (“Mexican appearance” could be one factor among others, but alone does not justify a stop); id. at 886 (“Large numbers of native-born and naturalized Americans of Mexican descent live in the border area, and appearances are deceptive and not a reliable criterion of citizenship.”).
6. See Cal. Atty. Gen. Op. No. 01-213 (Dec. 26, 2001) (advising that local police may not stop or question individuals about immigration status solely because they speak Spanish or another foreign language, as that would lack reasonable suspicion and raise constitutional concerns) ([PDF] Opinion No. 01-213 - California Department of Justice). This principle is reinforced by equal protection: cf. Melendres v. Arpaio, 989 F. Supp. 2d 822, 825–27 (D. Ariz. 2013) (finding that Maricopa County Sheriff’s policy of detaining Latino individuals to check immigration status was discriminatory and unconstitutional).
7. United States v. Hankey, 203 F.3d 1160, 1168–70 (9th Cir. 2000) (finding gang expert testimony admissible under Rule 702 based on extensive experience, and relevant to explain witness’s fear of retaliation); United States v. Rios, 830 F.3d 403, 413–15 (6th Cir. 2016) (upholding admission of gang experts in RICO trial, emphasizing the trial court’s gatekeeping ensured reliability and that testimony stayed within proper bounds). But see United States v. Mejia, 545 F.3d 179, 190–94 (2d Cir. 2008) (urging courts to strictly police expert gang testimony to prevent introduction of testimonial hearsay or undue prejudice; expert should not simply recite information about gang’s crimes that jury can infer as bad acts of defendant).
8. See, e.g., United States v. Brown, 925 F.3d 1150, 1154–55 (9th Cir. 2019) (nervous behavior and looking over shoulder, in a high-crime area, did not alone create reasonable suspicion to stop; such factors were too common and ambiguous absent specific information tying defendant to a crime); State v. Stevens, 267 P.3d 1203, 1210 (Kan. 2011) (holding that “furtive gestures” like slouching and dipping shoulder, without more, were insufficient cause for a vehicle search).
9. People v. Albarran, 149 Cal. App. 4th 214, 227–31 (2007) (reversing convictions where prosecution introduced extensive gang evidence (names, graffiti, etc.) that was not directly tied to the charged crimes; prejudice far outweighed minimal relevance). Federal courts have similarly warned against overuse of gang evidence: e.g., United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996) (“Gang evidence should be excluded if it is intended to prove nothing more than a defendant’s criminal disposition.”).
10. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060–61 (9th Cir. 2010) (holding tattooing is pure expressive activity fully protected by the First Amendment; a total ban on tattoo parlors was unconstitutional). The First Amendment protection extends both to the tattoo artist’s expression and the wearer’s display of the tattoo. Thus, government action specifically targeting tattoos (like an ordinance prohibiting certain tattoo designs, or a condition of probation forbidding displaying tattoos) would be subject to strict scrutiny.
11. Ronald K.L. Collins & David L. Hudson Jr., Saggy Pants and the First Amendment: Belts Are Not the Only Things at Risk, 1st Amend. L. Rev. (UNC), Nov. 2015, at 1, 5–10 (discussing saggy-pants ordinances and noting arguments that clothing style can be a form of cultural speech). Some local saggy-pants bans have been repealed or struck down after public opposition, often without reaching a court decision on constitutionality.
12. Claiborne Hardware, 458 U.S. at 932 (quoting Schware, 353 U.S. at 246). See also United States v. Robel, 389 U.S. 258, 264 (1967) (“It is precisely because membership without more, in an organization engaged in both legal and illegal activities, cannot be punished that [the statute] sweeps unnecessarily broadly and thereby violates the First Amendment.”). Robel struck down a law that barred Communist Party members from employment in defense facilities, as it made no allowance for whether an individual member was actually involved in any illegal advocacy or activity.
13. Charles E. Hughes, Speech to the Union League Club, New York City (May 7, 1920), quoted in United States v. Rumely, 345 U.S. 41, 56 n.6 (1953) (Douglas, J., concurring). Justice Douglas and others have cited this Hughes statement approvingly in multiple opinions to emphasize the personal nature of guilt in our legal tradition.
14. Barham v. Ramsey, 434 F.3d 565, 573–77 (D.C. Cir. 2006) (denying qualified immunity to police officials for the mass arrest of protesters in Pershing Park in 2002 without individualized probable cause). This case led to settlements and policy reforms in D.C. regarding how police handle demonstrations. Another example is the class action Allen v. City of Chicago (after the 2003 Iraq War protests), which resulted in a settlement for hundreds arrested without probable cause.