Two years ago, Gerardo Serano – an American
citizen, Kentucky farmer and a one-time GOP Kentucky statehouse
candidate – was driving his brand new, $60,000 Ford F-250 pick-up truck
to visit relatives in Mexico, snapping pictures along the way, when
Customs and Border Patrol agents halted him at the border, demanded his
cell phone, and asked him why he was taking pictures.
"I just wanted the opening of the
bridge. I was gonna take the opening of the bridge, the entrance of the
bridge. That’s all I wanted to do," Serano told Fox News.
As a self-proclaimed student of the Constitution,
Serano said he knew his rights, and protested to Customs and Border
Patrol agents vehemently when they asked him to unlock his phone.
SHOWDOWN LOOMS BETWEEN CONGRESS, POLICE OVER CIVIL ASSET FORFEITURE
"You need a warrant for that," he says he told them.
They searched his truck and found five bullets in a magazine clip that
Serano, a Kentucky concealed carry permit holder, forgot to remove
before leaving his home.
Gerardo Serrano showing a photo of his seized truck.
(Institute for Justice)
"We got you," he says border agents told him. He was
detained, but never arrested, nor charged, nor tried, nor convicted.
However, agents did seize his prized new truck. Two years since its
seizure, they have yet to give it back.
Serano is still making monthly payments of $673 on the truck as well as paying for its insurance and Kentucky license fees.
His attorneys at the Institute for Justice say Customs
and Border Patrol has told them the truck was subject to the
government's Civil Asset Forfeiture program because it was used to
"transport munitions of war."
SESSIONS OPENS DOOR FOR POLICE TO SEIZE ASSETS, FACES GOP PUSHBACK
The Civil Asset Forfeiture program has its roots in
English law that American colonists rebelled against. Their rebellion
was ultimately codified in the Fourth Amendment, which reads, in part:
"The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated..."
Gerardo Serrano showing the notice of seizure he received when his truck was seized.
(Institute for Justice)
Despite that unambiguous language, civil asset
forfeiture was revived in the 1930s Prohibition era against bootleggers
and mobsters. It was revived again in the 1980s war on drugs and
continues to this day.
"It’s absolutely astonishing that civil forfeiture is a
policy that we have in this country,” said Clark Neily of the Cato
Institute. “It is totally unjust, unfair, and I think it's
unconstitutional."
Sen. Rand Paul, (R-KY) agrees.
"There are instances of people, young people, getting
some money and saying, ‘I'm moving to California from Boston.’ They're
stopping in some small town in Nevada, and they have a thousand bucks
their dad gave them to get started,” Paul said. “And the police just
take it and say: ‘You prove to us that this isn't drug money.’"
Gerardo Serrano's truck was seized over five bullets, which he says were lawfully his.
(Institute for Justice)
Morgan Wright, a senior fellow at the Center for
Digital Government, spent 20 years as a police officer and detective in
Kansas. He cites the benefits of civil asset forfeiture.
"We seized everything from cars to houses to money to
jewelry to you name it," he said. "One of the cash seizures I had, had
plans for a methamphetamine laboratory. They had documented intelligence
that they had people working in these operations, people selling
cocaine - cartel activity out of Mexico."
Wright acknowledges asset forfeiture may have gone too far.
"One of the worst things you can do in law enforcement
is to take a good tool and abuse it," Wright said. "So that restrictive
regulations come down on it, and it's taken away from everybody."
Many contend the program's abuses outweigh its
benefits. Congressional critics were outraged, when, this summer,
Attorney General Jeff Sessions ended Obama-era restrictions that blocked
forfeiture without a warrant or criminal charges.
In a rare show of bipartisanship, conservative House
Republicans joined liberal Democrats this month in rolling back
Sessions’ undoing of the Obama-era reforms. During floor debate, Rep.
Dana Rohrabacher said: "Asset forfeiture is a crime against the American
people committed by their own government."
Gerardo Serrano with his new, leased truck. He is still making
monthly payments of $673 on the seized truck as well as paying for its
insurance and Kentucky license fees.
(Institute for Justice)
Tulsi Gabbard (D-Hawaii) echoed his sentiment.
"The Fourth Amendment to the Constitution exists to
protect the citizens of this country from being deprived of life,
liberty or property without due process of law. In practice and in
principle, adoptive forfeiture is a violation of that Fourth Amendment,"
she said
The Senate is also poised to act.
"We have a free-standing bill that says the government
shouldn't take peoples’ property without a conviction, that the burden
is on the government that you actually agreed to commit a crime," Sen.
Paul told Fox News.
"We also will look at, as the funding bills come
through in the House, if they do bring up the Appropriation Bill for the
Department of Justice, I will attach that language to it," he added.
Many say what's needed is a Supreme Court test case. It may get one.
Serano, represented by the Institute for Justice, is
suing Customs to get his truck back and to end the policy of civil
forfeiture once and for all. Justice Clarence Thomas has publicly said
the high court needs a good case that address the problems of civil
asset forfeiture.