The briefs in Gerardo Serrano v. U.S. Customs and Border Protection were distributed to the Justices on March 31, 2021. This petition for certiorari, featured in a February 23 Federalist Society teleforum, asks the high court if due process requires a prompt post-seizure hearing to test the legality of a vehicle seizure, and continued detention of that vehicle, pending a final forfeiture trial.

In the criminal-arrest context when a person is deprived of their liberty, that person has the right to receive a probable-cause hearing. In the civil-asset forfeiture context, Mr. Serrano is asking the Supreme Court to recognize a comparable right to have a pre-trial hearing for the deprivation of property rights.

The U.S. Supreme Court granted certiorari to hear this question several years ago in Alvarez v. Smith, 558 U.S. 87 (2009), but, due to procedural difficulties, the Court was unable to reach the question presented. CBP’s primary argument against certiorari here is that this case is moot, but Mr. Serrano counters that both the district court and the Fifth Circuit held otherwise. CBP also argues that the Fifth Circuit correctly held that current civil forfeiture procedures satisfy due process. Mr. Serrano counters that the government’s merits arguments are irrelevant at this stage: Krimstock v. Kelly, 306 F.3d 40, 68 (2d Cir. 2002), a decision by then-Judge Sotomayor, holds that prompt post-seizure hearings are required, resulting in a circuit split on the question presented. Mr. Serrano closes that the “rampant due process violations associated with modern civil forfeiture warrant review.”

The Supreme Court will soon decide whether to hear and decide this important question concerning property rights and vehicle seizures.

Stay tuned for the Court’s decision and while you wait, grab some popcorn and listen to leading scholars discuss this potentially blockbuster cert petition involving the hotly contested subject of Civil Asset Forfeiture on a recent installment of Fed Soc’s teleforum series.

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