On Sept. 21, 2015, Gerardo Serrano was driving from his home in Kentucky to Piedras Negras, Mexico, when his truck was searched by U.S. Customs and Border Protection agents at Texas's Eagle Pass border crossing. After finding a small ammunition clip, the agents took Serrano's truck from him.
Two years later, Customs hasn't charged Serrano with a crime, and they haven't given his truck back either. Now he's suing over what he calls a violation of his constitutional rights.
Customs seized the truck under the laws of civil asset forfeiture, which allow authorities to take cash and property from citizens upon suspicion of criminal wrongdoing. Because it happens under civil law, no criminal conviction — or even criminal charge — is necessary for authorities to take property they believe is connected to a crime.
Supporters call civil forfeiture a valuable crime fighting tool that allows authorities to take criminals' ill-gotten gains and put them to good use. Critics, like Serrano, contend the practice is an invitation to abuse that ensnares thousands of innocent citizens each year.
Serrano's case hinges on the meaning of those five bullets.
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Serrano is originally from Chicago but he's lived on a farm in Kentucky for 20 years. A lifelong Republican, he unsuccessfully ran for a seat in Kentucky's House of Representatives in 2014 on an explicitly pro-Second Amendment platform.
He describes himself as a civil libertarian, and has a concealed carry permit for a Sig Sauer .380 pistol he carries for self-defense.
“I believe in freedom,” he said in an interview with The Washington Post. “That's what made this country great, is our freedom, our liberty.”
In September 2015, Serrano drove his new Ford F-250 pickup from his home in Kentucky to the Mexico border. He was going to visit a cousin he hadn't seen in many years.
He snapped a few photos with his phone as he drove through the checkpoint, planning to upload them to Facebook, just as he says he had been doing throughout his whole trip, to share the experience with friends and family back home.
That's when the trouble started. One of Serrano's photos shows two Customs agents looking in his direction, hands held up. According to his lawsuit, the agents objected to his taking photos.
Those agents waved him over to the side of the road, on the U.S. side of the border, and demanded he hand over his phone.
Serrano said “no.”
Customs declined to say whether there's a prohibition on photography at border crossings.
Customs also declined a request from The Washington Post to speak with the agents involved with the seizure of Serrano's truck, or to provide any report of the incident they may have written up. Serrano submitted a FOIA request for these documents in December 2016. Customs assigned a tracking number to this request, according to his lawsuit, but has not otherwise responded to it.
Customs also declined to comment on any issue pertaining to the case, issuing a statement instead: “As a matter of policy, we do not comment on pending litigation. However, lack of comment should not be construed as agreement or stipulation with any of the allegations.”
According to Serrano's lawsuit, as he tried to explain himself, one of the agents unlocked Serrano's door, unbuckled his seat belt, and yanked him out of the car.
“I know I didn't do anything wrong,” Serrano told The Post. “So I say 'listen, you can't yank me out like that, I'm an American, you can't do that to me.'”
The agent took his phone, and demanded Serrano give him the passcode.
Serrano recalls he told the agent to “go get a warrant.”
By this time, other agents had started searching his truck. “I said, 'Hey listen I have rights, you're violating my rights, you're not supposed to do that kind of stuff,'” Serrano recounted.
“I'm sick of hearing about your rights,” the agent said, according to Serrano's lawsuit. “You have no rights here.”
Eventually, one of the agents searching the truck found an ammunition clip containing five .380-caliber bullets and yelled “we got him!,” according to the lawsuit.
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The bullets in Serrano's truck were a problem because civilian firearm ownership is illegal in most cases in Mexico, unlike in the United States. The State Department says that hundreds of Americans are arrested in foreign countries each year for carrying guns that are perfectly legal in the United States.
But those arrests typically happen south of the border, not in the United States. “It's definitely unusual [for CBP] to search a car that's leaving the country,” said Robert Everett Johnson of the Institute for Justice, a civil liberties law firm that is representing Serrano in federal court and a longtime forfeiture opponent. “The normal focus with CBP is on people coming into the country, not people going out of the country.”
Serrano had planned to take his pistol on the trip, but he left it home at the strong urging of his cousin, who explained the potential consequences of bringing it to Mexico. But he didn't realize the extra ammunition clip, containing five .380 caliber rounds, was still in the center console of his truck.
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At the crossing, the CBP agents put Serrano in handcuffs and continued to ask him to give up the passcode.
“You go get that warrant,” Serrano says he told them. “I'll wait for you in jail.”
Serrano didn't believe that any judge would grant a warrant to search a phone for taking pictures at the border. He says he was trying to call what he believed to be the agents' bluff. “A lot of people don't understand basic civil rights,” he said.
For Serrano, there was also the principle of the whole thing.
“I ran for office here in Kentucky,” Serrano said. “I ran on principles of the Constitution and my rights. Everyone knows me as a Second Amendment guy. It would be hypocritical of me to talk one way in my home state and then give [CBP] what [they] want. I have to stand by my principles.”
The agents eventually placed Serrano in a locked cell without food, water or a toilet, Serrano says. Periodically someone would come in and ask for the passcode to his phone, he says. He refused every time.
Serrano says that after three hours, the agents told him he was free to go, returned his phone and said he wasn't being arrested or charged with any crime. Serrano says he was elated and thought he “wore them out.”
But then, the agents handed him a document informing him that Customs was taking his truck and the ammunition clip. Those items were “subject of legally becoming the property of the Federal Government (forfeiture),” according to the document, because Serrano had failed to disclose the presence of the clip, making the truck a “conveyance of illegal exportation.”
Serrano told the agents to arrest him. “If I did something wrong I'd prefer they arrest me because I knew I'd win in court,” he said
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Many Americans haven't heard of civil asset forfeiture, the legal provision that grants police the authority to seize cash and property from people not charged with a crime.
The practice doesn't follow the traditional American concept of “innocent until proven guilty.” If police suspect that you acquired something as a result of illegal activity, or even if it is connected to illegal activity, they can take it from you. If you want to get it back, the onus is on you to prove you got it legally.
Once property is seized and forfeited, in most states and at the federal level police can either keep it for themselves or sell it at auction to raise money for the department. Critics say this creates a perverse profit motive.
“Civil forfeiture allows the government to take your property without giving you any of the protections you get under the Constitution” as part of the criminal justice system, said Robert Johnson, Serrano's attorney. “That's an open invitation to abuse.”
The practice is widespread. In 2014, for instance, federal law enforcement officers alone took more than $5 billion worth of cash and property from people — more than the total amount of reported burglary losses that year.
After public outcry, the Obama administration put in place a number of restrictions on forfeiture that made it harder, in some cases, for authorities to take property without a criminal conviction. But Attorney General Jeff Sessions recently reversed those restrictions.
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Serrano eventually rented a car to get back home to Kentucky.
Several weeks later he received a formal forfeiture notice from Customs, informing him that the government believed his truck was being used to transport “arms or munitions of war.” The notice gave him a number of options to pursue if he wanted his truck back.
One of the options was to make an “offer in compromise” — send Customs a check, and if they deemed the amount to be high enough, they would return his truck to him.
“That's like a shakedown,” Serrano said, "'give us an offer and we'll figure out if it's enough.'”
Serrano opted to challenge the seizure in court.
“Gerardo didn't want to throw himself at the mercy of the agency,” said Johnson, his lawyer. “He wanted the judicial system to put it right. He invoked his right to a judge.”
Serrano filled out the paperwork immediately and wrote Customs a check for nearly $4,000 — a bond in the “penal sum” of 10 percent of the truck's value, which the agency required of Serrano to challenge the forfeiture in court.
Serrano's bank records show that Customs cashed the check on Oct. 30, 2015. Nearly two years later, they still have his truck.
Serrano's lawsuit, filed on Sept. 7, seeks the immediate return of his vehicle, compensatory damages, and an injunction against federal agencies prohibiting them from similarly seizing property without prompt hearings in the future.
“Two years is too long to wait,” Johnson said. “Just like you get a hearing within 48 hours of being arrested, you should be entitled to a hearing promptly after your property is taken.”
Serrano, for his part, has spent the past two years making loan and insurance payments on a truck sitting somewhere in a Customs impound lot. He's become disillusioned by the government he once sought to join as an elected official.
“It's like there's a war going on and they want to make war with my Bill of Rights,” he said. “How do they get away with this? How could this happen?”