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IJ Will Appeal Texas Border Forfeiture Case to U.S. Supreme Court

Case argues that police cannot seize cars indefinitely without giving owners an opportunity to plead their case in front of a judge

Today, a federal appeals court ruled that law enforcement agencies can seize and keep Americans’ cars indefinitely without giving the owners an opportunity to plead their case in front of a judge. The decision from the Fifth Circuit Court of Appeals is a blow to the constitutional rights of car-owners in Texas, Mississippi and Louisiana, including Gerardo Serrano, who brought the case with the help of attorneys at the Institute for Justice.

Gerardo’s case started in 2015, when he was traveling to Mexico to visit family in his brand-new F-250. As he was crossing the border, Customs and Border Protection officers searched his truck, where they found five low-caliber bullets he had forgotten in the bottom of his center console. Calling the bullets “munitions of war,” the agents seized his truck. Five forgotten bullets are all it took for the government to argue that Gerardo was an international arms smuggler, rob him of his property and refuse to take the matter before a judge for years. The truck sat in a government impound lot until 2017, when IJ got involved in Gerardo’s case. In all of that time, Gerardo never had an opportunity to plead his case before a judge.

“When the government takes someone’s property, the owners should have an opportunity to challenge the seizure in court immediately, not wait days, months, or, as in Gerardo’s case, even years for the ability to plead their case in court,” said Anya Bidwell, an attorney at the Institute for Justice, which represents Gerardo. “The Supreme Court has already said that there must be a prompt hearing when you’re arrested. It also requires pre-seizure hearings for real estate. It makes no sense for the Fifth Circuit to hold that a car is somehow different and you are not entitled to quickly see a judge and contest its seizure.”

While today’s decision is disappointing, Gerardo is not done fighting. He and the Institute for Justice will now ask the United States Supreme Court to take up the case. In a similar case, a separate federal appeals court determined that property owners do, in fact, have a right to quickly challenge a seizure in court. Writing for the court, then-Appeals Court Judge Sonya Sotomayor held that these so-called “prompt post-seizure hearings” are required by the Constitution.

“I’m doing this for my children,” said Gerardo about his decision to go to the United States Supreme Court. “No one should have to go through what I’ve gone through. I just wanted to have my day in court, not wait for years to get my truck back. This is America. We’re a country of laws and the government cannot take someone’s property forever just because they want to. That’s what the Constitution says. I just hope the Supreme Court takes up my case.”

“Civil forfeiture often occurs outside the courts, as property owners simply cannot wait months or years to see a judge,” said IJ Senior Attorney Rob Johnson. “The result is a shadowy system, where government abuses are unseen and unchecked. Our goal in this case is to drag all of those cases out of the shadows and put them before a real judge.”

For more than a decade, IJ has challenged law enforcement officers’ use of civil forfeiture to take and keep Americans’ property. IJ is currently litigating cases challenging the use of civil forfeiture in Texas, Pennsylvania, South Carolina, and Indiana, where it secured a unanimous Supreme Court decision forcing states to abide by the Bill of Rights protection against levying excessive fines.

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