While the First Amendment provides the freedom to associate, people often wonder about whether gang affiliation is a crime or considered free association. Generally, being a member of a gang is not in and of itself illegal; however, it is likely to lead to illegal activity which is generally punished more harshly if there is a gang affiliation. This is because many states define gangs as groups that include a purpose of committing crimes or illegal acts. However, as history has shown, figuring out who is actually in a gang is not easy.
To fight the gang problem, a majority of states have gang enhancements that can be applied to other criminal charges that will typically make the punishment, if convicted, stricter. Additionally, state and federal law enforcement maintain gang member databases, so that law enforcement can more easily determine if a suspect, arrestee, or detainee is a current or former gang member. While it may be legal to be a member, when a gang injunction has been issued, then being a gang member out in public, or even being misidentified as a gang member in public, can lead to arrest and/or prosecution.