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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.

Institute for JusticeInstitute for JusticeGerardo 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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  • Brandybuck||

    We have truly become a third world nation.

  • Zeb||

    I'm curious to know how you define "third world".

  • target||

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

  • MSimon||

    There are worse places.

  • Tionico||

    but I have chosen not to live there. The rights guaranteed me here are the set I prefer, and intend to make use of.

  • tatap||

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  • Flinch||

    Yes. This is the stuff of places in Africa, where police may just show up and take your car/boat/cow or whatever. Complain, and you get jailed or worse. Banana republic it is, and the casualty is freedom in the "war on drugs", and its penchant for overreach has done nothing but damage our civilization. Once upon a time, nobody had property transferred but upon making a case for damages in court. We must return: we are a hair away from somebody using the current 'takings' method of operation and making the case that private property no longer exists, therefore... civil suits can no longer be heard, and we all have to sue uncle sam any time there are damages. Good luck with that, or get cracking on moving states toward an article 5 process with the number one item being a constitutional amendment for congressional term limits. When the "pro's" can't stay in DC for more than 12 years, they are going to demand simpler and more equitable laws - because they WILL have to live with them after they pass.

  • AlmightyJB||

    Pigs gonna oink. Who watches the watchers?

  • Ecoli||

    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.

  • Calidissident||

    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.

  • CE||

    We had the chance to vote for Ron Paul.

  • Tionico||

    don;t fire them... charge them with perjury, swearing an oath (their oath of office) and then violating it) then remove their right to arms because of the resultant felony conviction. See how they like THAT show fitting the other foot. Without the ability to possess firearms, no fed job. Nice.....

  • Unicorn Abattoir||

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

  • Ragoftag||

    Alas, common sense cannot be trained.

  • Sanjuro Tsubaki||

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

  • Flinch||

    Not only return his truck, but pay massive damages, plus an equivalent of either daily rental fees or car payments on a comparable vehicle [new condition @ msrp]. CBP doesn't need training as much as... congress needs to do their job. If an agency director is running roughshod on peoples rights, IMPEACH them! We have a problem obviously: government has been grown so large that two things are true: congressional oversight is now physically impossible, and no president will EVER wrap their head around all that takes place in DC. Asset "forfeiture" is straight up theft, and since due process was abandoned it seems fair that reparations are in order. That includes alot of scum, but so be it: restore property rights and our civilized rule of law. To hell with an apology: restore due process, and PAY.

  • albo||

    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.

  • TrickyVic (old school)||

    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?

  • Brother Kyfho||

    Because FUCK you, that's why, you know, Reasons.

  • Tionico||

    Nor can the money hire an attorney, examine witnesses, present their own......

  • Flinch||

    Odd indeed. $23,407.69 is capable of making motions, raising objections, asking for continuances and all that goes with a legal proceeding? Astounding. What this means is that any and all acts of conservatorship are null and void, as your 'pet rock' from the 70s is now competent and deserves standing. Our rule of law is in very deep trouble, and is on life support. That is a bad omen indeed - revolutions are birthed from this level of lawlessness draped in robes of authority.

  • Quo Usque Tandem||

    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.

  • Quo Usque Tandem||

    ..South of the Border jail.

  • Ron||

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

  • CE||

    Blaming the victim.

  • Uncle Jay||

    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?

  • Ecoli||

    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.

  • Don't look at me.||

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

  • Ron||

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

  • Colossal Douchebag||

    Love me some IJ.

  • Brother Kyfho||

    Loves me more some Rule 308.

  • Get To Da Chippah||

    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.

  • IceTrey||

    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.

  • Longtobefree||

    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?

  • CE||

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

  • Tionico||

    Not even if they're BMG 50, or 20mm cannon. AND the possessor has the pieces of equipment needed to make use of them, numbering even into the hundreds.

    These dirty coppers are all wet...... THEY have the burden of proof this guy had INTENT to transport across the international boundary without the Department of State Export documents. And dey doan got nuffum but the truck, and hopefully will soon lose that.

    This man could make a defense for his possession of that ammunition that since he owns the handgun uses that round, and he takes that handgun wherever he travels, legally across all those states, the ammuniton they found is an "accessory" to his mode of transport.... thus part of it. No crime in any case... if they DID have something they'd have tossed that grenade into his lap, he'd have gone on down to the ol CrowBar Hotel, and they'd have his truck fair and square after his conviction, which surely would have happened by now.

  • Brian Richard Allen||

    .... 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!

  • CE||

    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?

  • PlaystoomuchHALO||

    Translation: "I'm now driving your truck, serf. Shut up and go away."

  • Tionico||

    WHY are CBP controlling and inspecting people EXITING the US? Seems their job is to clear INBOUND folks and stuff. We don't pay Mexicans to run our inbound border stations, do we? This smells stinky fishy.

  • Flinch||

    Five bullets. This is beyond ridiculous: an "international arms smuggler"? And what about Eric Holders activities smuggling an entire arsenal that resulted in scores of deaths in Mexico, and a few law enforcement officers here in the US? This level of mendacity is beyond the pale, in that the punishment absolutely does not fit the situation with Serrano. Let's see... no sale was attempted, no transfer of property was sought by Serrano, and there was no offer to buy. Smuggling? This is as bad as a former president debating what the meaning of "is" might be. This is punishment without due process and whoever directed CBP to behave like gestapo is responsible - I hope a case can be opened to make the government individuals personally responsible, although we know the federal government has inoculated itself with various immunities for a very long time. At a minimum, "takings" need to be labeled as tyrannical, and due process restored. If the government has a case for damages, then take it to court - anything else is theft. The evil Nixon unleashed in seeking a legal fix for a culture problem in our "war on drugs" has damaged the nation - that's where the root of all "takings" began. Yes, it was amped up on Reagan's watch, but we can't rely on personalities can we? Following presidents have enjoyed 'legal' theft to even greater extremes. It's time to restore a civilized rule of law, and demand due process because... if we don't, private property is dead.

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