Border agents did not respond well when Gerardo Serrano told them to get a warrant before searching his phone at a U.S. Customs and Border Protection checkpoint in Texas. To teach him a lesson, they seized his nearly new Ford F-250, worth about $38,000, and kept the vehicle for the next two years without due process.
When the Kentucky resident finally got his truck back, the government offered no apology or compensation. Instead, the two agents who violated Serrano’s rights claimed they could not be sued because of their status as federal agents.
Such outrages have become common in recent decades, thanks to U.S. Supreme Court precedents that shield federal officers from accountability when citizens petition to be made whole following government abuse. Rather than accept the perverse legal arguments, Serrano partnered with the Institute for Justice and launched another two-year battle — this time for recovery of constitutional damages.
Oral arguments in his federal appeal will be today in New Orleans, four years after the ordeal started with a trip that Serrano took to see his cousin across the Rio Grande in Piedras Negras, Mexico. As Serrano approached the border, the agents saw him snapping photos to share with his family and friends. So they detained him and demanded the password to his phone.
Serrano offered to delete the images himself, but as a U.S. citizen, he declined to submit to the warrantless search. That’s when the officers got tough. “You have no rights here,” they told their detainee.
They then searched his vehicle, where they found five low-caliber bullets forgotten in the center console. The agents never charged Serrano with any crime, but they seized his truck on the pretense that he was transporting “munitions of war.”
Serrano rented a car and returned home without seeing his cousin. Once back in Kentucky, he called the border checkpoint where the vehicle had been seized. He also called a paralegal specialist. Later, he filed a request asking to see a judge. He also paid a $3,805 bond so he could get a court hearing that never materialized.
Nothing worked. Finally, Serrano partnered with the Institute for Justice and sued in federal court. Anxious to make the lawsuit go away, Border Protection finally relented and returned the vehicle (and the “munitions of war” they were so concerned about when they took the truck). But the agency ignored all of the consequential damages that result when the government revokes a person’s primary means of transportation.
For starters, Serrano had to fly or rent cars anytime he needed to go anywhere. He also had to stop work on a renovation project that required the use of his truck. And he had to continue making loan, insurance, and registration payments that totaled nearly $18,000. Despite the financial hardships, exacerbated by the stress and loss of dignity, a district court judge threw out Serrano’s case in 2018.
For justification, the judge cited modern interpretations of the law that deny a cherished founding principle: Remedies must exist when constitutional rights are violated, and government officials who trample on those rights must face penalties. Otherwise, they will act with increasing impunity.
U.S. courts understood the high stakes in earlier times. Harmed individuals could bring claims, and judges would determine whether federal officers had acted unlawfully. If so, the courts could order whatever remedies were necessary to satisfy the demands of justice. Officers who had acted in good faith or under orders of their superiors could go to Congress for compensation. That was a separate administrative matter, but the vindication of rights came first and was non-negotiable.
If Serrano had sued the border agents for seizing his property without a warrant and judicial process in 1815 rather than 2015, he would have been able to bring a damages claim. Today, he is trapped in a system that overlooks the need for constitutional accountability.
Federal officers need leeway to make mistakes. Otherwise, they would second-guess themselves in fast-moving situations that demand decisive action. But when officers violate rights with impunity and then compound the abuse with months or years of stonewalling, consequences must follow.
The Institute for Justice, which recently launched a Project on Immunity and Accountability, will represent Serrano in New Orleans as part of an effort to restore due process. Some things get better with age, but not legal interpretations that give federal officers a pass when they knowingly violate the law. Accountability is as important today as it was 200 years ago.
Anya Bidwell is an IJ attorney and the Elfie Gallun Fellow for Freedom and the Constitution.
