On September 21, 2015, Gerardo drove his Ford F-250 pickup to the border crossing at Eagle Pass, Texas. 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. Although 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, specifically to let his family members in Mexico know he would see them soon. Two CBP agents objected and stopped Gerardo’s truck. The agents asked Gerardo to provide the password to his phone, but Gerardo felt strongly that the officers could not constitutionally force him to do this without a valid warrant.
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 and he refused to cooperate with their demands.
Five Bullets Spark A Civil Forfeiture Case
When a group of CBP agents searched Gerardo’s truck, they found five low-caliber bullets (.38 caliber) 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.
Two Years Later, No Hearing and No Judge
Over twenty-three months passed after the CBP’s seizure of Gerardo’s truck, yet Gerardo never saw the inside of a courtroom, and the agency never had to justify the seizure before a judge. The agency did not even begin judicial proceedings to complete the forfeiture of Gerardo’s truck.
Gerardo did 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 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 were met with stonewalling and delay. Gerardo repeatedly called the phone number provided on CBP’s notice forms to ask when he would get his day in court, and was been told he just had to wait. Gerardo also submitted a Freedom of Information Act request in December 2016, seeking more information about his case, and CBP did not respond to that request.
While the government held Gerardo’s truck, Gerardo continued to make monthly loan payments on the vehicle. Gerardo was also forced to go without the vehicle that entire time, although he depends on the truck for his work.
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. Even at our nation’s founding, forfeiture laws directed courts to “hear and decide” the case after a mere 14-day delay. As demonstrated by Gerardo’s experience, today, property owners almost always wait months or years if they ever get their day in court to attempt to get their vehicle returned to them.
Prompt hearings happen in other areas of the law in a matter of days or weeks; hearings after vehicle seizures should be no different. But the reality is that 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. Every year, local, state and federal law enforcement agencies across the United States seize and keep billions of dollars in cash, cars, homes and other property using civil forfeiture. These forfeiture programs nationwide suffer from a lack of transparency and accountability. 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.
Gerardo understands government authorities in other countries can endlessly delay due process, but not here in America where government power is supposed to be limited by the Constitution. Here in the U.S., the government can’t hold someone’s property for years without making its case before a judge.
And that should be all the more true considering the importance vehicles play in our everyday lives—from taking us to work, to picking up family members and running essential errands. A swift hearing is essential to ensure that the government’s seizure of a vehicle doesn’t cascade into the loss of someone’s job or worse.
The Legal Claim: Property Owners Are Entitled to A Prompt Hearing
Rather than continue to wait, Gerardo, represented by the Institute for Justice, sued CBP to get his property back. The lawsuit charges CBP with violating the Fifth Amendment Due Process Clause by holding Gerardo’s property for months without a hearing in court, and it seeks an injunction requiring CBP to provide a prompt post-seizure hearing whenever it seizes vehicles for civil forfeiture. Gerardo filed the case as a class action, on behalf of every U.S. citizen with a vehicle seized by CBP.
Courts have split over whether due process requires a prompt post-seizure hearing. 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. The Second Circuit’s opinion explains that due process requires a hearing at a “meaningful time,” and “to say that the forfeiture proceeding, which often occurs more than a year after a vehicle’s seizure, represents a meaningful opportunity to be heard at a meaningful time . . . is to stretch the sense of that venerable phrase to the breaking point.” The Seventh Circuit agrees, as do the high courts of New York, Minnesota, and Ohio. But, on the other hand, the Ninth and Eleventh Circuits, as well as the Illinois Supreme Court, have held that no prompt hearing is required.
In this case, both the district court and the appeals court sided with those courts that do not require a prompt post-seizure hearing. Both cases rejected the government’s attempt to evade judicial review by returning the seized vehicle—explaining that the return of the truck did not moot the case because Gerardo could still move forward with class-action claims on behalf of all U.S. citizens who have had vehicles seized at the border. But, having rejected the government’s attempt to moot the case, both courts held that due process does not require government to provide a prompt post-seizure hearing after seizing automobiles.
This case—which was appealed to the U.S. Supreme Court on December 1, 2020—is not about the forfeiture itself. Rather, it is about whether due process requires a prompt initial hearing after the government seizes a vehicle through civil forfeiture so a court can decide whether there is justifiable grounds for the seizure.
The Institute for Justice, which represents Gerardo, is not arguing that the government must hold the ultimate forfeiture trial right away. But—given how long property owners wait for trial—the government must provide a prompt, initial hearing where the property owner can challenge the seizure, just like the government must provide a probable cause hearing shortly after an arrest.
There is no question that the government can 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, and gets it promptly after their vehicle is seized.
The Litigation Team
The Institute for Justice attorneys representing Gerardo are Rob 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, Virginia, 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 brought the issue of civil forfeiture to the U.S. Supreme Court in Timbs v. Indiana, the case in which the Supreme Court held that the Excessive Fines Clause is incorporated against the states. IJ has also 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, winning in each of these and other cases.