Asset Forfeiture

2 Years After CBP Took His Truck Because of a Few Forgotten Bullets, Still No Hearing

A new lawsuit argues that owners of vehicles seized at the border have a constitutional right to prompt hearings.

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Institute for Justice

Gerardo Serrano was on his way to visit his cousin in Mexico when Customs and Border Protection (CBP) agents at the border station in Eagle Pass, Texas, found a magazine containing five .380-caliber rounds in the center console of his pickup truck. Serrano, a U.S. citizen with a concealed-carry permit issued by Kentucky, said he did not realize the magazine was in the truck and offered to leave it behind as he continued on his journey. But as far as the CBP agents were concerned, those five cartridges made Serrano an international arms smuggler. Although he was never charged with a crime, the agents seized the truck, a 2014 Ford F-250. That was two years ago, and Serrano still has not been given a chance to challenge the still-pending civil forfeiture of his property.

In a federal lawsuit filed last week, the Institute for Justice argues that property owners like Serrano have a constitutional right to a prompt hearing after a seizure, a right that CBP systematically violates. "Federal statutes do not provide for a prompt post-seizure hearing when property is seized for civil forfeiture by CBP, and CBP regularly fails to provide any kind of prompt post-seizure hearing," the complaint says. "Plaintiff has filed this suit to recover his property and to put that policy or practice to an end." In addition to the return of Serrano's truck and compensation for the costs he has incurred as a result of the seizure, the suit asks the court to certify a plaintiff class of similarly situated vehicle owners and order CBP to start respecting their due process rights.

Serrano attracted CBP attention because he was creating a record of his trip to share with friends and relatives on social media and used his phone to take pictures of the border station. CBP prohibits unauthorized photography near ports of entry. (After the ACLU challenged that policy on First Amendment grounds in 2012, a federal judge in California ruled that the ban was justified by the agency's "interests in preserving the integrity of its sensitive border search techniques, law enforcement operations, and criminal investigations.") After seeing Serrano take pictures, a CBP agent pulled him out of his truck, handcuffed him, took his phone, and demanded the password, which he refused to give. When Serrano complained that his constitutional rights were being violated, the complaint says, the agent responded that he was "sick of hearing about your rights" and told Serrano "you have no rights here."

In this context, the seizure of Serrano's truck looks a lot like retaliation for his uppity attitude. Upon discovering the ammunition, according to the complaint, an agent exclaimed, "We got him!" The agent who had handcuffed Serrano told him, "You're in big trouble now." Serrano explained that he had a Kentucky carry permit, which was respected in the states he had traversed on his way to the border (Tennessee, Arkansas, and Texas). Hence his inadvertent transportation of the handgun magazine had not violated any laws yet. Since he was still in the United States, he wondered, couldn't he just leave the magazine at the border station? Sure, the agents said, but you'll have to leave your truck too.

Serrano opted not to pursue the administrative process for appealing a seizure, where the same agency that took the asset decides whether to keep it. Instead he paid a $3,805 bond (10 percent of the asset's value) so his case could be heard in federal court. But despite repeated inquiries, the case still has not been assigned to a federal prosecutor, let alone heard by a judge. According to the complaint, a CBP paralegal (one of the plaintiffs named in the suit) told Serrano "the attorneys who file forfeiture cases are very busy and cannot quickly process cases."

The U.S. Court of Appeals for the 5th Circuit, which includes Texas, ruled in 1983 that a 13-month delay between the seizure of money and the filing of a forfeiture complaint (which precedes a hearing) violated the right to due process. "The two-year delay in this case is far more extreme," notes Robert Everett Johnson, one of the I.J. attorneys representing Serrano.

In the Western District of Texas, I.J. says, the average time between a CBP vehicle seizure and the filing of a forfeiture complant is 150 days. Such a delay would be unacceptable in the 2nd Circuit, where a 2002 case involving the New York Police Department established that owners have a right to a hearing "promptly after their vehicles are seized." Johnson says I.J. wants the 5th Circuit to "adopt the Second Circuit's rule that you are entitled to a hearing within days of the seizure."

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41 responses to “2 Years After CBP Took His Truck Because of a Few Forgotten Bullets, Still No Hearing

  1. We have truly become a third world nation.

    1. I’m curious to know how you define “third world”.

      1. I assume he means that the only justice you see is the justice you can purchase.

        1. There are worse places.

  2. Pigs gonna oink. Who watches the watchers?

  3. Here is what Donald Trump should order:

    1. If there is probable cause to believe Serrano is an international gun runner, then charge him and try him.
    2. If no to item 1, then:
    2a. Return his truck;
    2b. Pay him for the loss of his property;
    2c. Order mandatory training for CBP in common sense;
    2d. Order mandatory training for CBP in fundamental constitutional rights of citizens;
    2e. Issue a sincere apology to Serrano by publishing an Op Ed in the Washington Times detailing how you (Trump) intend to rein in the feds and reestablish the primacy of individual liberty in the US, and reemphasize your commitment to obeying the US constitution.

    Finally, issue an EO forbidding the federal government from engaging in civil asset forfeiture.

    1. I’d love to see that, but it will happen when Hell freezes over.

      Also, you missed “fire the agents involved” on one of those steps.

      1. We had the chance to vote for Ron Paul.

    2. Trump’s already shown that he’s a copsucker, so I wouldn’t expect him to side with common sense.

    3. Alas, common sense cannot be trained.

    4. Ain’t gonna happen. He’ll probably side with the corrupt CBP.

  4. The fact that there’s a court case called “United States v. $23,407.69 in U.S. Currency” that this gentleman cites in his lawsuit gives you a good indication how f-ed up civil asset forfeiture in the US is.

    1. I’ve never understood how they can get away with that. $23,407.69 could not possibly understand the charges against it, nor can it make a plea on it’s own behalf. Was the money aware it did wrong? Does it have to appear in court? If not will a warrant be issued to bring it in?

      Money can’t be a defendant. so why can it be charged?

      1. Because FUCK you, that’s why, you know, Reasons.

  5. I often advised my daughters as they were growing up: “If you don’t want anyone to give you grief, don’t give them cause [as you are likely to get your share of grief without even trying].” Sure, his rights have been violated, but if you are going to push the buttons of some entity like CBP make damn sure you’re squeaky clean.

    This outcome is bad enough, but if the Mexicans had found that magazine, he would have been charged with being a counter revolutionary and be languishing in a South of the Border for the past two years.

    Moral? We are surrounded by assholes who seem to exist just to give us grief. Don’t make it easy for them.

    1. ..South of the Border jail.

    2. The problem is he did nothing illegal, except take pictures which I doubt they have big signs that state no pictures

    3. Blaming the victim.

  6. RE: 2 Years After CBP Took His Truck Because of a Few Forgotten Bullets, Still No Hearing
    A new lawsuit argues that owners of vehicles seized at the border have a constitutional right to prompt hearings.

    No, he does not have a right to a hearing because The State has a right to own all firearms and ammunition, and don’t even get me started on this man’s ridiculous claim to due process.
    When will all these untermenschen realize they’re being oppressed for their own good?

  7. By the way, possession of bullets is legal in the US, we are not some Marxist shit hole like Canada. This guy was arrested in the US.

  8. Funny how they always want the truck, but never the guys’ shoes or pants. Why?

    1. or just the camera since it was the pictures inside were the only violation

  9. Love me some IJ.

    1. Loves me more some Rule 308.

  10. According to the complaint, a CBP paralegal (one of the plaintiffs named in the suit) told Serrano “the attorneys who file forfeiture cases are very busy and cannot quickly process cases.”

    Maybe the attorneys would have more time if the cops weren’t stealing so many trucks.

  11. California is in the Ninth circuit, Texas is in the Fifth so that case is inapplicable. The Fifth ruled this year in Turner v Driver that photography of public officials in performance of their duties is a 1st amendment protected activity. The CBP clearly violated that right.

  12. No clear reading of the US Constitution can construe 5 rounds of ammunition as illegal. The law saying keeping and bearing arms is illegal is unconstitutional.

    On a cross policy related point, why does my state have to recognize another state’s same sex marriage if that state does not have to recognize my state’s (unconstitutional) carry permit?

    1. No clear reading of the US Constitution can construe 5,000 rounds of ammunition as illegal.

  13. …. the seizure of Serrano’s truck looks a lot like retaliation for his (alleged) “uppity attitude” ….

    Hmmmmm. Contempt of cop,eh?

    That will get you shot!

  14. A prompt hearing? How about getting the truck back, a full apology, and federal civil rights criminal charges against the armed thieves who took his property under color of law?

  15. Translation: “I’m now driving your truck, serf. Shut up and go away.”

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