Guest Editorial: Don’t forfeit due process for asset seizures
The Trump administration has vowed to ramp up civil asset forfeitures, but yet another case illustrates why this is a bad idea.
Civil asset forfeiture is the practice whereby law enforcement agencies seize cash or other property that they suspect may be related to a crime. The intent is to deprive criminals, particularly in the illicit drug trade, of the ill-gotten gains from their illegal activities, but there are serious due process concerns because, at the federal level and in most states, property may be seized without even charging someone with a crime, much less convicting them of one.
The problem is exacerbated by the fact that the agencies get to keep the proceeds of seizures to pad their budgets, which has provided a perverse incentive to engage in unjustified seizures and led to many abuses. Today’s example concerns U.S. Customs and Border Protection.
Two years ago, Gerardo Serrano was stopped at a border crossing in Eagle Pass, Texas. After searching Serrano’s truck, Border Patrol agents found five low-caliber bullets in the glove box and used it as justification to seize the truck, under the guise that the five forgotten bullets constituted “munitions of war,” as if this made Serrano an international arms smuggler.
“When the agents told me they were seizing my truck, I said, ‘No, you’re not seizing my truck, you’re stealing my truck!’” Serrano said in a statement. “I didn’t think that this could happen in America. I thought it was only countries like Cuba or Venezuela that would treat their citizens this way. It felt like they were thugs with badges.”
Serrano was then given the choice to submit to an administrative process, and rely on the agency’s decision to keep or return his truck, or to fight the seizure in court. He chose the latter option, but for this privilege he was compelled to fork over $3,800 — 10 percent of the value of the truck. But, though the agency cashed the check promptly, it has not granted him a hearing in nearly two years, so the Institute for Justice has now filed a lawsuit against the federal government on his behalf.
“If the government arrested Gerardo to pursue criminal charges, it would have had to bring him before a judge without unnecessary delay — generally within 48 hours,” the Institute for Justice noted. “But because the government took Gerardo’s property instead, it claims it can keep his truck for years without any kind of hearing. Property should not, and cannot, be relegated to second-class status under the Constitution.”
Fortunately, some high-profile cases of civil asset forfeiture abuse have prompted nearly 20 states to restrict the practice, and some, like New Mexico, have abolished it altogether. And, despite Attorney General Jeff Sessions’ promise to increase the federal government’s use of the practice, just last week the House passed an amendment to an appropriations bill that would defund the forfeiture program that Sessions had restored.
“For the government to take away someone’s property and then say, ‘You have to prove you are innocent to get it back,’ that is totally in contrast to the limited government, individual responsibility, individual freedom and property rights concepts that our Founding Fathers had in mind,” co-sponsor Rep. Dana Rohrabacher, R-Costa Mesa, said on the House floor.
We quite agree. Due process should never be sacrificed, or property seized without a criminal conviction.
Orange County Register, Sept. 20