Civil asset forfeiture laws, which allow the government to seize property allegedly tainted by crime without ever charging the owner, are fundamentally rigged in favor of the law enforcement agencies that get a cut of the proceeds. Even when an owner manages to challenge a forfeiture by arguing that he was not involved in any criminal activity, he has the burden of proving his innocence, and the process often costs more than the property is worth. Adding insult to injury, the government can drag out the process for so long that even innocent owners feel compelled to surrender. The Institute for Justice (I.J.) challenges that aspect of civil forfeiture in an appeal it filed this week, asking the Supreme Court to rule that due process requires a prompt post-seizure hearing.
Early civil forfeiture laws in the United States recognized the importance of that safeguard. The Collections Act of 1789, I.J. notes, required a hearing within 14 days after the government filed its forfeiture complaint, which was supposed to happen shortly after the seizure. A decade later, Congress amended the law to emphasize that forfeiture suits must be commenced "without delay." Nowadays, by contrast, property owners routinely wait months or years before they get a chance to challenge a seizure before a neutral adjudicator.
The I.J. case involves Gerardo Serrano, a U.S. citizen and Kentucky resident whose pickup truck was seized by Customs and Border Protection (CBP) in September 2015, while he was on his way to visit relatives in Mexico. The official, patently absurd justification: The truck was suspected of involvement in international arms smuggling, because Serrano had forgotten about a handgun magazine and five rounds he had left in the center console. He waited two years without a hearing until CBP suddenly decided to return the truck in 2017, a month after I.J. filed a lawsuit on his behalf.
The circumstances of the seizure strongly suggest that Serrano was punished for asserting his constitutional rights. He attracted the attention of CBP agents because he was using his iPhone to take pictures on the U.S. side of the border, documenting his journey for social media. According to the I.J. petition, two agents stopped his truck, "physically removed him from it, took possession of his phone, and repeatedly demanded the password." Serrano declined to provide his password, suggesting that the agents get a warrant if they wanted to search his phone. According to Serrano's original lawsuit, one agent replied that he was "sick of hearing about your rights," informing Serrano that "you have no rights here."
Three agents searched Serrano's truck. Upon discovering the magazine and five rounds, the lawsuit says, an agent announced, "We got him!" The agent who was tired of hearing about rights handcuffed Serrano, saying, "You're in big trouble now." Serrano, who had a Kentucky license to carry a concealed handgun and had not crossed the border yet, explained that he had forgotten about the ammunition and offered to turn around or leave the cartridges at the border station. The agents were unmoved. After detaining Serrano for about three hours, they let him go, but he had to leave on foot, because CBP kept his truck.
Serrano was never charged with a crime, and neither was the truck, since the government never got around to filing a forfeiture complaint. A notice that CBP sent him 10 days after the seizure laid out six options for him to choose from, none of which provided a route to a prompt hearing. He decided to challenge the seizure in federal court and paid a $3,800 cash bond for the privilege. Then nothing happened, despite Serrano's repeated inquiries, until October 2017, a month after I.J. filed its lawsuit, which argued that CBP's forfeiture practices violated the Fifth Amendment's guarantee of due process.
The upshot is that Serrano lost his property for two years based on nothing more than a probable cause determination by CBP agents who were clearly irritated by his refusal to provide his iPhone password. Such delays are built into modern forfeiture procedures, which include an "administrative" phase during which a property owner can plead for mercy from the same agency that took his stuff and would receive the proceeds from selling it.
That was one of the options Serrano was presented with. CBP said he also could submit an "offer in compromise," agreeing to pay the government part of his truck's value in exchange for its return. He could "abandon any interest in the property," letting the government keep it. He could "do nothing," leading to the same result. He could "offer to substitute release of the seized property on payment," meaning he would get the truck back after paying the government its full market value. Or he could "request court action and have his case referred to the U.S. Attorney for institution of judicial forfeiture proceedings."
Serrano picked that last option, the only one that did not involve relying on CBP's benevolence, submitting to its extortion, or surrendering completely. But that left the ball in the government's court, where it remained because CBP was under no obligation to proceed with the forfeiture in a timely manner.
The Civil Asset Forfeiture Reform Act (CAFRA), a 2000 law that was supposed to curtail forfeiture abuses, gives the federal government 60 days to send a seizure notice and another 90 days to file a complaint. That's a total of five months before an owner can even begin to challenge a forfeiture in federal court, which itself entails months of discovery and motions. I.J. notes that the rules are even looser for customs cases like the seizure of Serrano's truck, which are not subject to the usual deadlines, "with the result that it is not uncommon to see pre-filing delays exceeding even the 150-day delay contemplated by CAFRA."
These delays create a lot of pressure on property owners, especially when the government seizes a vehicle they depend on to get around or make a living. "Delay provides a potent weapon to force settlements," I.J. notes, "and many forfeitures are resolved without any court case ever being filed."
Despite that reality, a federal judge and the U.S. Court of Appeals for the 5th Circuit both ruled against Serrano, concluding that he got all the process he was due. The question of whether due process requires a prompt post-seizure hearing has divided state and federal courts, and I.J. wants the Supreme Court to resolve the issue.
"Requiring a prompt post-seizure hearing would introduce an important element of judicial oversight," the petition says, "and it would ensure that property owners do not languish for months or years without the ability to challenge warrantless seizures. By enforcing basic due process principles, this Court could rein in abuses associated with modern civil forfeiture."