IJ Lands a Forfeiture Victory

And Launches a Broad Class Action Attack

Two years and 28 days after the federal government seized his truck, Gerardo Serrano climbed into the cab, turned the key and drove off. On the way out of the parking lot, he called: “Institute for Justice, thank you! I love ya!”

As readers of Liberty & Law will recall, Customs and Border Protection officials seized Gerardo’s truck using civil forfeiture because they found five forgotten bullets in the glove box during a search at a border crossing. Gerardo demanded a hearing before a judge—posting a bond of almost $4,000 for the privilege—but two years later still had not seen the inside of a courtroom.

Tired of waiting, Gerardo joined with IJ and sued. Weeks later, the government surrendered, calling to say Gerardo could pick up his truck anytime.

It is, by now, a familiar story: The government seizes property, and refuses to give it back, but immediately changes its tune when IJ brings a case. The same thing has happened in nearly all of IJ’s recent civil forfeiture cases.

In many ways, the most important part of Gerardo’s fight is still to come.

There is a lesson to be drawn from the pattern. Civil forfeiture thrives away from public scrutiny, and the government retreats when forced to justify itself in court. That is precisely why IJ’s work is so valuable, as we drag abuse into the light.

At the same time, lasting change requires more than victory in a single case. IJ’s ultimate goal is to secure judicial decisions bringing civil forfeiture to an end. When the government backs down without a fight, it frustrates that objective. By refusing to defend its actions, the government denies courts the opportunity to say it did something wrong.

In that light, the government’s habit of backing down whenever challenged assumes a more sinister aspect. The government uses a strategy of tactical retreat to evade judicial review.

That is why, in many ways, the most important part of Gerardo’s fight is still to come. IJ filed the case as a class action, meaning IJ sued on behalf of every U.S. citizen who has had a vehicle seized by Customs and Border Protection. Although Gerardo has recovered his truck, he will continue to represent that entire class and his case will move forward.

That class consists of hundreds or even thousands of people. In just one year, the government seized 122 vehicles at the same border crossing where Gerardo’s truck was seized. And that is just one border crossing, with many more vehicles seized nationwide.

On behalf of the class, Gerardo is seeking an order requiring that government provide a prompt hearing whenever it seizes property. Property owners should not have to wait months or years for their day in court. The government should have to justify a seizure to a judge within a matter of days.

Gerardo’s case shows the value of a prompt hearing. If the government had been forced to go to court immediately after seizing Gerardo’s truck, it would have taken days rather than years for Gerardo to get his property back. Indeed, if the government knew it would have to account for its actions to a judge, it might never have seized Gerardo’s truck in the first place.

In addition to fighting for the class, Gerardo also continues to fight on his own behalf. Among other things, the government still holds the $4,000 that it demanded as a condition of providing a hearing, and Gerardo is determined to get that money back with interest.

So, even as we pause to celebrate another victory, IJ will continue to press forward until we put the government’s civil forfeiture racket to an end.

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