Diary

Five Bullets and a Lost Truck

In this Aug. 11, 2017, photo, immigrants suspected of crossing into the United States illegally along the Rio Grande near Granjeno, Texas, are held by U.S. Customs and Border Patrol agents. After hitting a 17-year low shortly after President Donald Trump took office, the numbers of people coming over the border have risen four months in a row. (AP Photo/Eric Gay)

Gerardo Serrano was born and raised in Chicago and lives in Kentucky although he has family in Mexico.  In fact, his cousin owns a solar panel installation business and he headed to Mexico to discuss plans of expanding the business into the United States.  So, he loaded up his Ford F-250 truck and headed to visit his cousin deciding to use the border crossing at Eagle Pass, Texas.  Because he had not been to Mexico in many years, he took pictures of the border crossing.

That venture in photography caught the eye of Customs and Border Patrol (CBP) agents who then intercepted his truck.  It should be mentioned that CPB agents rarely stop traffic headed into Mexico.  They asked him for the password to his phone, which he refused.  While being detained in order to get the password, other agents searched his car and found five bullets in a center console.   Serrano explained that he possesses a concealed carry permit and having the bullets in the truck was perfectly legal.  Did I mention that Serrano had no firearm in the truck with which to shoot these bullets?

Serrano offered to turn around and leave the detention area and told agents they could keep the five bullets if they thought they were a danger to public safety.  After further questioning, the CBP agents allowed Serrano to leave.  However, they seized his truck asserting that seizure was legal since Serrano was transporting “munitions of war” across the border.  As a result, he had to rent a car for the return trip to his farm in Kentucky.  Five bullets made Serrano an international firearms trafficker.

Most interesting, despite the seizure of his truck, Serrano was never charged with any crime.  In fact, he has yet to see the inside of a courtroom.  In order to challenge the seizure in court, the government sent him a letter stating he had to post a bond of 10% of the truck’s value- about $3,800- which he paid and which the government cashed.  He still has not had his day in court.

This happened in September, 2015.  Ironically, had they charged him with a crime, he would have had to appear before a judge within 48 hours and likely gotten his truck back after posting bail.  Serrano, besides renting a car back to Kentucky, has also been making monthly payments on the loan on the truck for a vehicle he did not have.

The problem is that if the government had filed charges against Serrano, he could have raised a series of defenses the most important of which is an Eighth Amendment violation.  The forfeiture of a truck over five bullets seems rather “excessive” under the explicit wording of the Eighth Amendment.  There are also the Fourth and Fifth Amendment considerations.

And that is, from the government’s standpoint, the beauty of civil forfeiture.  Most innocent people simply give up, or settle with the government.  One study found that it takes an average of 150 days from the time of a seizure to a scheduled court appearance over a civil forfeiture.  In initial inquiries, the government offered Serrano an “offer in compromise” where he would pay the government a certain amount in order to get his truck back.

In October, 2017 the government finally contacted Serrano informing him he could get his truck back.  No charges were filed against Serrano either although Serrano has filed a lawsuit against the government for their actions.

While we can all agree that law enforcement can seize the property of real criminals engaged in real criminal enterprises (not forgetting five bullets in a truck’s cab console), the government should at least first prove that a crime was committed.  The irony is that had Serrano actually been charged with a crime, he would have had his day in court and his truck back a lot sooner.