Eagle Pass Forfeiture

Federal Agents Seized A Man’s Truck Over Five Forgotten Bullets. They Said He was Transporting “Munitions of War.” Now, After Having to Wait Two Years, He Is Suing To Get Back His Truck.

The U.S. Customs and Border Protection (CBP) agency seized and held Gerardo Serrano’s truck for over two years because he forgot he’d left five bullets in his center console. Welcome to the upside-down world of civil forfeiture, where law enforcement can seize your stuff without ever charging you with a crime. Five forgotten bullets are all it takes for the government to argue that someone is an international arms smuggler and rob them of their constitutional rights.

It all started in September 2015 when Gerardo was crossing the border into Mexico at Eagle Pass, Texas, in his nearly-new Ford F-250 pickup truck. While he waited to cross, he snapped photos to share with his relatives on Facebook. Two CBP agents stopped him at the side of the road. Gerardo, the agents said, was being detained because he’d taken photos.

While detained, Gerardo watched agents search his truck. Finally, one officer gleefully said “we got him” and held up five low-caliber bullets Gerardo had forgotten were in his center console. The agents told him he was free to go, but they were keeping his truck. According to CBP, the truck was subject to civil forfeiture because it was used to transport “munitions of war.“ To get home to Kentucky, Gerardo had to rent a car.

For over two years, the agency held Gerardo’s truck without ever taking its case before a judge. Gerardo had to pay 10% of the value of the truck—around $3,800—just to contest the seizure. No court ever approved the seizure of Gerardo’s truck, and Gerardo never had an opportunity to argue that he should get the truck back. The truck continued to sit in a government impound lot while he continued to make monthly payments.

Gerardo was never convicted of a crime, let alone charged with one. Indeed, forgetting a few bullets in your car is not a crime. For taking pictures, Gerardo’s truck was seized under a law designed to punish international arms smugglers, not innocent Americans visiting family in Mexico.

Done waiting, Gerardo joined with the Institute for Justice to sue to get his property back. Finally, in October 2017, the government returned Gerardo’s truck.

Gerardo’s case is still ongoing, as he sued for more than just the return of his property. Gerardo filed suit on behalf of a class of other U.S. citizens who have had their vehicles seized by Customs and Border Protection, seeking an order requiring the agency to provide a prompt post-seizure hearing whenever they take vehicles for civil forfeiture. While Gerardo has recovered his own truck, he continues to press his class action claims.

While Gerardo has recovered his own truck, he continues to press his class action claims.  The lawsuit is currently on appeal before the Fifth Circuit, which will hear argument in winter 2019-2020.

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 passed since CBP seized Gerardo’s truck. Yet Gerardo never saw the inside of a courtroom, and the agency never had to justify the seizure to 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 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 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.

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 had filed a forfeiture case against the truck, Gerardo would have raised a number of defenses. Gerardo would have argued 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 would have argued 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.

However, the government never actually filed a forfeiture case, so there was no opportunity for Gerardo to raise any of these arguments. After all, Gerardo could not defend against a case the government had not brought.

In October 2017, just over one month after Gerardo filed suit, the government emailed to say that it was returning his truck without a fight. The government has not apologized to Gerardo and has offered no explanation for its actions.

Although Gerardo has recovered his property, the lawsuit remains ongoing. Among other things, Gerardo continues to press forward with his class action claims, as Gerardo is determined to make sure this kind of thing does not happen again.

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.