On September 21, 2015, Gerardo drove his nearly-new Ford F-250 pickup to the border crossing at Eagle Pass, TX. Gerardo’s cousin runs a solar panel installation business across the border, and Gerardo was visiting to discuss the possibility of helping expand the business to the United States. While Gerardo has family in Mexico, he was born and raised in Chicago, lives on a farm in Kentucky, and had not been to Mexico in years.
Because Gerardo had not been to Mexico for so long, he decided to take pictures of his border crossing on his cellphone to post on social media. Two CBP agents objected and stopped Gerardo’s truck. The agents asked Gerardo to provide the password to his phone, but Gerardo declined as a matter of principle.
While CBP does not normally search traffic headed into Mexico, the agents made an exception for Gerardo because they did not like that he was taking photos.
Five Bullets Spark A Civil Forfeiture Case
When a group of CBP agents searched Gerardo’s truck, they found five low-caliber bullets in a magazine in the truck’s center console. One of the agents called out, “We got him!”
Gerardo explained that it was entirely lawful for him to have the bullets in the United States, as he has a concealed carry permit. While Gerardo did not bring his gun with him to Mexico, he forgot the bullets were in his truck.
In an attempt to assuage the agents’ concerns, Gerardo offered to turn around and leave the border facility. He also offered to let the agents keep the bullets, if they were concerned the bullets posed a threat to public safety. But the agents declined these offers. Instead, they detained Gerardo for hours. The whole time, the agents continued to demand that he provide the password to his phone.
Finally, the agents told Gerardo he was free to go. But they also told him they were keeping his truck. According to CBP, the truck is subject to civil forfeiture because it was used to transport “munitions of war.” In other words, CBP claims that five bullets made Gerardo an international arms smuggler. He was never charged with a crime.
Twenty Three Months Later, No Hearing And No Judge
Over twenty-three months have passed since CBP seized Gerardo’s truck, and the agency presumably still has the vehicle. Yet Gerardo has never seen the inside of a courtroom, and the agency has never had to justify the seizure to a judge. The agency has not even begun judicial proceedings to complete the forfeiture of Gerardo’s truck.
Gerardo has done everything the agency asked to get his day in court. Not long after the seizure, the government sent Gerardo “notice” forms directing him to submit a bond equal to ten percent of the value of the property in order to challenge the seizure in court. Gerardo did as he was told, sending a check for more than $3,800, and bank records show the government cashed the check on October 30, 2015.
Gerardo’s subsequent inquiries have been met with stonewalling and delay. Gerardo has repeatedly called the phone number provided on CBP’s notice forms to ask when he will get his day in court, and he has been told he just has to wait. Gerardo also submitted a Freedom of Information Act request in December 2016, seeking more information about his case, and CBP has not responded to that request.
While the government has held Gerardo’s truck for almost two years, Gerardo has continued to make monthly loan payments on the vehicle. Gerardo also depends on the truck for his work, and he has been forced to go without the vehicle this entire time.
Civil Forfeiture Means Delay
This kind of delay is made possible by civil forfeiture. If the government arrested Gerardo to pursue criminal charges, they would have had to bring him before a judge without unnecessary delay—generally within 48 hours. But the government does not follow that rule when it takes property for civil forfeiture.
Lengthy delays—during which property owners cannot access seized property—are common in civil forfeiture cases. The Institute for Justice has represented several clients who waited years for the federal government to initiate civil forfeiture proceedings.
A survey of vehicle forfeiture cases filed by CBP in the Western District of Texas between 2009 and 2017 found that the average time between the seizure and the filing of a forfeiture complaint (itself just a first step towards a court hearing) was over one hundred and fifty days.
The government knows that many property owners, faced with this kind of delay, will settle or give up rather than wait for their day in court. Indeed, the “notice” forms that CBP sent Gerardo after the seizure explicitly invited him to submit an “offer in compromise” to pay the agency to get his vehicle back.
All of this is exacerbated by the profit motive inherent in civil forfeiture. When law enforcement agencies forfeit property—or convince property owners to settle forfeiture cases—they keep the proceeds to fund their budgets. Law enforcement thus has a powerful incentive to take property from people who have done nothing wrong, and to force those people to settle to give their property up.
The Legal Claim: Property Owners Are Entitled To A Prompt Hearing
Rather than continue to wait, Gerardo has joined with the Institute for Justice to sue to get his property back. The lawsuit charges CBP with violating both the Fourth and Fifth Amendments by holding Gerardo’s property for months without a hearing in court.
Courts have consistently held that both the Fourth and Fifth Amendments limit government’s ability to hold property indefinitely without a hearing. A recent decision from the Ninth Circuit found that police violated the Fourth Amendment’s prohibition on “unreasonable” seizures by holding a car for thirty days without judicial process. And the Second Circuit—in an opinion authored by then-Judge Sotomayor—held that the Due Process Clause of the Fifth Amendment requires that government provide a prompt hearing soon after the seizure of a car for civil forfeiture. Twenty-three months and counting surely does not qualify as prompt.
Gerardo is filing this suit as a class action, meaning he is suing on behalf of all citizens who have vehicles seized by CBP. In addition to seeking the return of his own property, Gerardo is asking the court to order CBP to provide a prompt post-seizure hearing in every case where a vehicle is seized.
Everyone agrees the government should be able to take property from real criminals, including at the border. But when the government takes property, the government should have to prove the owner did something wrong. This lawsuit seeks to ensure that every property owner targeted by CBP gets a day in court.
Government Cannot Forfeit A Truck Over Five Bullets
If the government files a forfeiture case against the truck, Gerardo will raise a number of defenses. Gerardo will argue that he did not actually violate federal arms smuggling laws, as he did not know that the bullets were in the truck. Moreover, setting that statutory issue aside, Gerardo will argue that forfeiture of the truck would be an excessive fine or penalty under the Eighth Amendment. The government cannot forfeit an entire truck over five bullets.
At this point, however, the government has not actually filed a forfeiture case. Unless and until the government takes that step, there is no reason for Gerardo to raise any of these arguments. After all, Gerardo cannot defend against a case the government has not brought. So, for now, the legal focus of the case remains the government’s delay.
The Court And The Parties
The lawsuit was filed in the United States District Court for the Western District of Texas, which is the federal court for the district where the property was seized.
Gerardo is the plaintiff, and the defendants are Customs and Border Protection (the agency responsible for the seizure), Commissioner Kevin McAleenan (the official who oversees the agency), Juan Espinoza (the local CBP official responsible for processing this particular forfeiture case), several unidentified John Does (local CBP officials responsible for maintaining custody over seized property), and the United States of America (the federal government).
The Litigation Team
The Institute for Justice attorneys representing Gerardo are Robert Everett Johnson and Anya Bidwell, who litigate property rights cases nationwide.
The Institute For Justice
The Institute for Justice is the national law firm for liberty. IJ is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government. IJ is based in Arlington, Va., and has offices in Arizona, Florida, Minnesota, Texas and Washington state, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.
IJ has come to the defense of Americans nationwide to fight civil forfeiture, including the owners of the family-run Motel Caswell in Massachusetts, a woman in Albuquerque whose car was seized by city police, small business owners across the country whose bank accounts were targeted for civil forfeiture by the IRS, and a class of property owners in Philadelphia challenging that city’s forfeiture machine.