UPDATE: The Court distributed Gerardo’s case to the justices today—March 31. The justices are scheduled to hold a conference on April 16 to consider whether to hear his case, and they’ll announce their decision to review it sometime thereafter.
Government Routinely Holds Property Months or Years Without a Hearing; Gerardo Serrano Waited Two Years for His Day in Court
John Kramer:
ARLINGTON, VA—Does due process require a prompt hearing after the government seizes a vehicle through civil forfeiture?
That is the question the justices of the U.S. Supreme Court will consider addressing in Serrano v. Customs and Border Patrol, a lawsuit appealed by the Institute for Justice (IJ) on behalf of its client, Gerardo Serrano, who had his new truck taken from him at the Mexican border in 2015.
- At America’s Founding, laws directed courts to “hear and determine” forfeiture cases after a mere 14-day delay. Today, property owners must wait months or years for their day in court.
- Law enforcement has a direct financial incentive to abuse the system, as agencies sell property that they seize and use the proceeds to fund their budgets.
- Law enforcement frequently uses delay to extract settlements from property owners. Many, unable to wait for a hearing, simply give up.
Customs and Border Protection (CBP) didn’t like that Gerardo took photos at the border, which he planned to share on social media with relatives in Mexico to let them know he would see them soon. Two agents objected and, after stopping Gerardo’s truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password. Gerardo, a staunch believer in civil liberties who has run for elected office on a platform of respect for constitutional rights, suggested that the agents obtain a warrant. The border agents responded by telling Gerardo they were “sick of hearing about [ ] rights.” In retaliation, they went through his new Ford pickup with a fine-tooth comb searching for any excuse to seize his vehicle. They found five low-caliber bullets, which they absurdly called “munitions of war,” and used them as an excuse to take his vehicle. (There was no gun in the vehicle.) For the next two years, despite Gerardo’s repeated requests, the government never gave him his day in court to prove his vehicle’s innocence or to force the government to justify its actions before a judge.
Shortly after Gerardo filed a class-action lawsuit against the CBP (Serrano v. Customs and Border Patrol), the agency tried to moot Gerardo’s case by returning the vehicle. But the trial court held that the case was not moot—as Gerardo could move forward with class-action claims on behalf of all U.S. citizens who have had vehicles seized at the border—and the 5th U.S. Circuit Court of Appeals agreed. Still, having rejected the government’s attempt to moot the case, both courts held that due process does not require government to provide a prompt post-seizure hearing after seizing automobiles. That ruling is now on appeal to the U.S. Supreme Court.
“In the criminal context, after the government arrests you, it must hold a probable cause hearing shortly after the arrest—even if the criminal trial follows later,” said Rob Johnson, an IJ attorney. “We are saying the government must provide the same kind of prompt hearing after it takes your property.”
Gerardo said, “It’s bad enough that civil forfeiture forces you to prove your property is innocent; it’s worse when the government doesn’t even give you your day in court to state your case. I understand these kinds of abuses by government authorities can happen in other countries, but not here in America where government power is supposed to be limited by the Constitution.”
At the Founding, forfeiture laws directed courts to “hear and decide” forfeiture cases after just a 14-day delay. Gerardo’s inability to get his day in court after over two years stems from the explosive use of forfeiture, especially over the past 40 years, and the desire of law enforcement to game the system so it is as difficult as possible for those seeking to get their property back to succeed. Government can use lengthy delays to extract settlements, and most property owners give up long before their case reaches a judge.
Johnson said, “There is no reason a hearing can’t be held in a matter of two weeks rather than the endless delays property owners now experience.”
“Imagine being detained at an airport checkpoint because you innocently forgot to take a tube of toothpaste out of your luggage,” said Anya Bidwell, an IJ attorney. “Rather than asking you to throw it out or put it in your checked bag, the TSA seized all your luggage, including the toothpaste tube. That is basically what Border Patrol agents did to Gerardo. Then, worse than that, they held onto his vehicle for two years, never giving him a chance to defend himself before a judge or hold those officers accountable for their actions.”
“In any other area of the law, outside of civil forfeiture, the Supreme Court has stated you’re entitled to a swift hearing before or immediately after the government takes your property,” said Scott Bullock, president and general counsel for the Institute for Justice. “A car should be no different, and yet car and truck owners face years of delay before they can fight in court to get their property back.”
Vehicles often represent a person’s livelihood and their ability to get to work; that just underscores the importance of a swift hearing, to ensure that the loss of a vehicle doesn’t cascade into the loss of someone’s job or worse.
Every year, local, state and federal law enforcement agencies across the United States seize and keep billions of dollars in cash, cars, homes and other property using a legal tool called civil forfeiture. To better understand the issue, the Institute for Justice released a report titled Forfeiture Transparency & Accountability that examines forfeiture reporting requirements and practices for all 50 states, as well as the District of Columbia and the U.S. departments of Justice and the Treasury. It finds that forfeiture programs nationwide suffer from a lack of transparency and accountability.
RELATED ARTICLE: Eagle Pass Forfeiture
