A case coming before the U.S. Supreme Court may drive a nail in the coffin of a horrendous abuse of power that flies in the face of the Fifth Amendment – civil forfeiture. Excerpt:
Does due process require a prompt hearing after the government seizes a vehicle through civil forfeiture? That is the question the justices of the U.S. Supreme Court will consider addressing in Serrano v. Customs and Border Patrol, a lawsuit appealed by the Institute for Justice (IJ) on behalf of its client, Gerardo Serrano, who had his new truck taken from him at the Mexican border in 2015.
Customs and Border Protection (CBP) didn’t like that Gerardo took photos at the border, which he planned to share on social media with relatives in Mexico to let them know he would see them soon. Two agents objected and, after stopping Gerardo’s truck, physically removed him from it, took possession of his phone, and repeatedly demanded the password. Gerardo, a staunch believer in civil liberties who has run for elected office on a platform of respect for constitutional rights, suggested that the agents obtain a warrant. The border agents responded by telling Gerardo they were “sick of hearing about [ ] rights.” In retaliation, they went through his new Ford pickup with a fine-tooth comb searching for any excuse to seize his vehicle. They found five low-caliber bullets, which they absurdly called “munitions of war,” and used them as an excuse to take his vehicle. (There was no gun in the vehicle.) For the next two years, despite Gerardo’s repeated requests, the government never gave him his day in court to prove his vehicle’s innocence or to force the government to justify its actions before a judge.
Here are the details of the legal claim:
Shortly after Gerardo filed a class-action lawsuit against the CBP (Serrano v. Customs and Border Patrol), the agency tried to moot Gerardo’s case by returning the vehicle. But the trial court held that the case was not moot—as Gerardo could move forward with class-action claims on behalf of all U.S. citizens who have had vehicles seized at the border—and the 5th U.S. Circuit Court of Appeals agreed. Still, 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. That ruling is now on appeal to the U.S. Supreme Court.
“In the criminal context, after the government arrests you, it must hold a probable cause hearing shortly after the arrest—even if the criminal trial follows later,” said Rob Johnson, an IJ attorney. “We are saying the government must provide the same kind of prompt hearing after it takes your property.”
The Fifth Amendment states in part that no citizen shall “…be deprived of life, liberty, or property, without due process of law…” It’s pretty damn clear to me that seizing property without a warrant, a court order or a trial is a violation of that right; there is little or no due process involved in the seizure, and innocent citizens sometimes face a wait of years before recovering their own property.
Government only has two legitimate purposes: To protect the citizenry’s lives and property. Civil forfeiture is a clear violation of those purposes. This court case, should it be decided in Gerardo et al‘s favor, will be at least a start towards ending this unfair, corrupt and unconstitutional practice.