We must right the wrongs committed through civil forfeiture process

Photo by Callie Richmond for The Texas Tribune

Gerardo Serrano is suing U.S. Customs and Border Protection for taking his truck and keeping it for over two years without providing judicial review. Unfortunately, his situation is not unique. That’s why Serrano teamed up with the Institute for Justice and filed a class-action lawsuit on behalf of himself and others who were similarly wronged.

Two years ago, Serrano was driving his nearly new Ford F-250 truck through Texas on his way to visit family in Mexico. When entering the border crossing at Eagle Pass, he snapped several pictures to share on Facebook. Moments later, border agents stopped him and demanded the password to his phone.

As Serrano stood on his rights and refused to give up the password, the agents searched his truck for any evidence of wrongdoing. All they could find were five low-caliber bullets and a same-caliber clip that Serrano forgot to take out before beginning his journey. Those were enough to make Serrano an international arms smuggler and seize his truck for carrying “munitions of war.”

Never mind that Serrano had a gun license. Never mind that he was a U.S. citizen. Never mind that the agents failed to charge him with an actual crime. The agents told Serrano, “You have no rights here.” Too bad that “here” was the United States of America.

After being held for hours in a CBP detention cell, Serrano was free to go. His truck, however, has remained in CBP’s possession ever since.

Two years later, the case against Serrano’s truck is yet to be initiated. In other words, the government not only took his property without so much as charging him with a crime, it has also denied Serrano his constitutional right to go before a judge and try to recover what is rightfully his. Meanwhile, Serrano is making loan and insurance payments on his truck totaling more than $700 a month. He also had to post a bond equal to 10 percent of the value of the truck: an additional $3,804.99.

If you listen to civil forfeiture advocates like Polk County District Attorney William Lee Hon — one of the two panelists defending civil forfeiture at a recent Texas Tribune event on the subject — property seizures by law enforcement are infrequent.

But according to Freedom of Information Act data acquired by the Institute for Justice, this is simply not true. In 2015, CBP agents seized 122 cars in Eagle Pass, 363 in El Paso, 23 in Del Rio and 17 in Presidio — all from U.S. citizens and lawful residents. And these are only four border-crossing areas in just one state.

Hon would tell you that there are good reasons for such seizures. But as Serrano’s story demonstrates, government does not need a good reason to take people’s cars or other property and keep them indefinitely without judicial review.

Such a practice of preventing property owners from promptly challenging seizures in court is not simply unethical, it is unconstitutional. At least three federal appeals courts have held that holding seized property for a prolonged period of time without a judicial proceeding constitutes a violation of either procedural due process rights or a right against unreasonable seizures. One of these three cases even got to the U.S. Supreme Court, but by the time the court heard oral arguments, the property owners got their cars back, rendering the controversy moot.

But even if in theory Serrano’s claim is straightforward, in reality, CBP and other law enforcement agencies seem to think they can get away with such flagrant violations of the Constitution and for good reasons. They have a big supporter in the U.S. attorney general’s office. Attorney General Jeff Sessions has endorsed civil forfeiture as a necessary tool to fight human and drug trafficking. And even though the U.S. House has unanimously voted to defund Sessions’ recent foray into expansion of the controversial practice, such public support from the president and the attorney general undoubtedly emboldens law enforcement despite congressional actions.

Second, it is difficult to force law enforcement agencies to change their civil forfeiture practices with litigation alone. If challenged, they work hard to ensure that cases filed against them do not go very far by quickly returning the property and rendering issues moot. The problem, of course, is that not everyone can afford to file a lawsuit and thus not everyone gets their property back. As a result, even when government returns unlawfully seized property in one particular case, it feels free to continue this inherently abusive practice.

That’s why Serrano’s lawsuit is so important. He is suing CBP not only on behalf of himself, but also as a representative of a class of folks whose cars were seized and kept without ever getting to a judge. This way, Serrano can ensure that even if his truck is returned, he can remain in the litigation on behalf of others until this practice is once and for all declared unconstitutional.

As Serrano is fighting in the court of law, it is also time for federal and state policymakers to fight for him and others in Congress and our state Legislature. Fourteen states have already abolished civil forfeiture and now require conviction in order to seize property for forfeiture. It is time the federal government and the state of Texas joined this vanguard of states and got rid of civil forfeiture altogether.

Anya Bidwell

Attorney, Institute for Justice

Be the first to comment
We must right the wrongs committed through civil forfeiture process Comment