J. Justin Wilson
J. Justin Wilson · April 19, 2021

Today, the U.S. Supreme Court refused to hear a case that would have forced the government to fix one of the most basic and outrageous abuses in civil forfeiture: the inability of property owners to have their day in court shortly after their property is seized by police. As the result of this abuse, property owners routinely wait for months or years before they finally see a judge and have a chance to get back what the government took from them without charging, let alone convicting them of a crime.

What happened to Gerardo Serrano is a case in point. He was driving his brand-new F-250 across the U.S.-Mexico border when the border agents stopped him and asked him to give them the password to his phone. Apparently they did not like that Gerardo was taking photos to share the moment with his family on social media. When Gerardo offered to delete the photos but refused to give up the password, the agents forced him out of the truck and searched it. Finding only a handful of low-caliber bullets (and no gun) the agents called them “munitions of war” and seized the truck. After detaining Gerardo for several hours, they let him go home, on foot. Gerardo wanted to challenge the seizure as soon as it happened. But he had to wait for two years, with no response from the government. Finally, tired of waiting, Gerardo partnered with the Institute for Justice (IJ) and sued the Border Patrol. The case argued that the federal agents violated his constitutional rights by not providing him with an opportunity to see a judge. He did so not only on behalf of himself, but on behalf of all U.S. citizens whose cars were taken for civil forfeiture at the border. Facing a class action lawsuit, the Border Patrol returned Gerardo’s truck, claiming “no harm, no foul.”

Gerardo continued his lawsuit against the Border Patrol, but both the trial court and the 5th U.S. Circuit Court of Appeals ruled that a failure to provide U.S. citizens with an opportunity to challenge the seizure of their cars does not constitute a violation of Due Process. This ran contrary to what other circuit courts have held, so Gerardo and IJ asked the Supreme Court to weigh in on the issue, but the Court refused to do.

“This is no doubt very disappointing” said Rob Johnson, an IJ senior attorney who led the certiorari effort before the U.S. Supreme Court. “But we are not done fighting. According to the Supreme Court precedent, the history of this country, and the basic norms of decency, the government cannot take your car without providing you with a prompt opportunity to challenge the seizure. This issue will continue knocking on the Supreme Court’s door.”

“When the agents seized my truck, I couldn’t believe it was happening to me,” said Gerardo Serrano. “And now I’m back in the Twilight Zone, thinking this can’t be real. How can the courts just ignore this? And how can an ordinary person afford to wait years after the government takes their car?”

While lengthy delays are common in most civil forfeiture cases, the problem is particularly acute when government seizes property at the border. Although federal law generally requires the government to file a forfeiture case within 150 days of a seizure, even that lengthy deadline does not apply to customs seizures. That loophole is sometimes referred to as the “customs carve-out.”

“Particularly now that the Supreme Court has declined to act, Congress needs to step up,” said IJ Attorney Anya Bidwell. “Congress needs to close the customs carve-out, and Congress needs to enact comprehensive civil forfeiture reform.”

Civil forfeiture is a fundamentally un-American concept which allows local, state and federal law enforcement to seize and keep billions of dollars in cash, cars, homes and other property without charging, let alone convicting anyone of a crime. Worse, law enforcement is incentivized to do this, as they generally keep the proceeds of the seizures for their benefit.

“The Institute for Justice is committed to fighting this pernicious practice,” said Scott Bullock, president and general counsel for the Institute for Justice. “We will continue to stand by Gerardo and anyone else who was wronged by civil forfeiture.”

Gerardo agreed: “I am going to do whatever it takes to make this change.”