Surveying the Federal Government’s Kafkaesque System of Legalized Larceny, the 5th Circuit Sees No Due Process Problem
When the government uses civil asset forfeiture laws to steal the property of innocent people, it often backs down upon encountering unexpected resistance, as bullies tend to do. But as Gerardo Serrano’s experience with legalized larceny illustrates, those victories do not necessarily help other people who find themselves in the same Kafkaesque situation.
Five years ago, Serrano was on his way to visit his cousin in Mexico when Customs and Border Protection (CBP) agents in Eagle Pass, Texas, found a magazine containing five .380-caliber rounds in the center console of his pickup truck. Serrano, a U.S. citizen with a Kentucky concealed-carry permit, said he did not realize the magazine was in the vehicle and offered to leave it behind as he continued on his journey. But as far as the CBP agents were concerned, those five cartridges made Serrano an international arms smuggler. Although he was never charged with a crime, the agents seized the truck, a 2014 Ford F-250.
After Serrano paid a $3,800 cash bond for the privilege of trying to get his truck back, two years went by without a hearing. Then in October 2017, a month after the Institute for Justice helped him file a lawsuit arguing that the government’s forfeiture practices violated his Fifth Amendment right to due process, CBP suddenly decided to return his vehicle, which the government had never officially tried to keep. Serrano continued to pursue his lawsuit, which aimed to qualify as a class action, because he wanted to stop this sort of thing from happening again. A federal judge shot him down two years ago, and yesterday the U.S. Court of Appeals for the 5th Circuit agreed that Serrano had failed to state a due process claim.
That conclusion is astonishing when you consider the options that Serrano confronted after CBP took his truck. The notice that the agency sent him 10 days after the seizure explained that he could do one of six things:
1. He could file a “remission petition” begging the s
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