In 2015, Gerardo Serrano’s truck was seized by Customs and Border Protection (CBP). He was never charged with a crime and CBP never filed paperwork to permanently take his truck. After 23 months without being able to see a judge and plead for the return of his property, Gerardo launched a class action lawsuit with the Institute for Justice. While his truck was ultimately returned, Gerardo continues to seek justice for the horribly unconstitutional way he and others are routinely treated.
The government shouldn’t be able to take something from you and keep it as long as it wants without providing any way to get it back. But even though that is exactly what happened to Gerardo, his lawsuit was thrown out by the district court and his appeal to the circuit court was recently denied. If this decision stands, then there is no right to a prompt trial when the government seizes vehicles. Unless the Supreme Court hears Gerardo’s appeal and overturns the lower courts, Americans could find themselves in legal limbo with no clear way to get their vehicles back.
Gerardo’s horror story started with a few innocent photos. On September 21, 2015, Gerardo was crossing into Mexico from Eagle Pass, Texas. He had been documenting his road trip for his friends and family in Kentucky and thought nothing of taking a few photos of the border crossing to share on social media. Two CBP officers objected and demanded to search his vehicle.
Vehicles are rarely searched going into Mexico, but CBP has incredible power to police the border area. With little more than a hunch, the agents started crawling through Gerardo’s truck. All they found were five bullets in the center console. While Gerardo, who is a concealed carry permit holder, remembered to leave his gun with a cousin in Texas, he simply forgot about the handful of loose bullets. And while he offered to let the agents keep the bullets, they instead told him he was being charged with transporting “munitions of war.”
Gerardo was honestly shocked the government agents could so easily take his truck and thought that it would probably only be a few days before he could clear things up. But that wasn’t the case. After a few days it was clear that there was no path for him to contest the seizure quickly and he had to rent another vehicle to drive home to Kentucky. Over the months his truck was being held, he went back to Texas several times to try to get it out. When asked, he posted a $3,800 bond so that he could challenge the seizure in court. The check was cashed, but he still never received a court date.
The Kafkaesque process to which Gerardo was subjected isn’t rare for those facing a federal civil forfeiture action. A recent Institute for Justice (IJ) study on airport seizures found that it took 15 years for one cash seizure to be finalized. Individuals facing civil forfeiture of their property are not entitled to an attorney who can help them wade through the confusing process of filing the right forms at the right time in the right way. And failure to follow the right bureaucratic procedures can result in an administrative forfeiture that is never approved by a court.
CBP agents were probably hoping that Gerardo would just give up. They only realized how tenacious he was when his story was splashed across the Washington Post. A few weeks later, the government admitted that it had no reason to keep the truck and handed it back. The government eventually returned the five bullets too.
If Gerardo had been arrested, he would have been held for no more than 48 hours before coming before a judge. A similar process should be afforded when the government takes your vehicle.
Gerardo’s suit seeks to have a federal court declare that his right to a prompt post-seizure hearing was violated. The district court in Texas and now the 5th Circuit Court of Appeals in New Orleans ruled against him. Yet in a similar case, the 2nd Circuit Court of Appeals ruled that New York City could not indefinitely hold vehicles without a hearing. In fact, the opinion in that case was written by Justice Sonia Sotomayor when she served on the appeals court.
The U.S. Supreme Court needs to step in and hash out this disagreement between the circuit courts. CBP agents in Texas shouldn’t be able to get away with holding vehicles indefinitely while others in California have to move the judicial process forward at a reasonable pace.
“No one should have to go through what I’ve gone through,” says Gerardo. “I just wanted to have my day in court, not wait for years to get my truck back. This is America. We’re a country of laws and the government cannot take someone’s property forever just because they want to. That’s what the Constitution says. I just hope the Supreme Court takes up my case.”