Failure to Protect

Broward Ex-Deputy Sheriff Scot Peterson has been arrested and charged with seven counts of neglect of a child, three counts of culpable negligence and one count of perjury in the aftermath of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Peterson, a School Resource Officer, declined to intervene in that shooting, instead hiding behind cover for 45 minutes while the shooter killed seventeen and wounded seventeen others.

This is pretty much unprecedented.  Until now, officers of the law have been held not liable for the protection of any individual person or persons, as I explained in detail in my May, 2003 posts, Is the Government Responsible for Your Protection? Part I and Part II.  As I explained in Part I:

Carolyn Warren, Joan Taliaferro, and Miriam Douglas were the appellants in a lawsuit against the District of Columbia and its police department for failing to protect them. Fail them it did, but the court found against them. And here is its reasoning:

A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order. The extent and quality of police protection afforded to the community necessarily depends upon the availability of public resources and upon legislative or administrative determinations concerning allocation of those resources. The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate. Private resources and needs have little direct effect upon the nature of police services provided to the public. Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community. (Emphasis is mine)

Note the quote: “without exception.” This is not the first time someone has sued the government for not protecting them, not by a long shot. It’s one of the most egregious examples, but far from the only one.

So, it isn’t the government’s responsibility to protect “individual members of the community,” that is, you and me specifically.

This has been established for years, most recently in Castle Rock v. Gonzales from 2005. But in Part II of my essay I linked to a different case, Riss v. the City of New York, from 1968 in which a woman got a restraining order against her abusive boyfriend who had told her if he couldn’t have her, no one else would want her – and then carried out his threat by hiring someone to throw lye in her face, blinding her in one eye and disfiguring her face. She begged for police protection before the attack and got nothing. After the attack she received 24-hour protection. She sued. She lost, for the same reason Carolyn Warren, Joan Taliaferro, and Miriam Douglas lost – there is no duty to protect any particular individual or individuals unless they’re in custody or under direct care.

Here’s where it gets interesting. There was a dissent in the Riss case, and here’s the pertinent part of that dissent:

No one questions the proposition that the first duty of government is to assure its citizens the opportunity to live in personal security. And no one who reads the record of Linda’s ordeal can reach a conclusion other than that the City of New York, acting through its agents, completely and negligently failed to fulfill this obligation to Linda.

Linda has turned to the courts of this State for redress, asking that the city be held liable in damages for its negligent failure to protect her from harm. With compelling logic, she can point out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the courts would certainly require him to pay damages. (Restatement, 2d, Torts, § 323.) Why then should the city, whose duties are imposed by law and include the prevention of crime (New York City Charter, § 435) and, consequently, extend far beyond that of the Good Samaritan, not be responsible? If a private detective acts carelessly, no one would deny that a jury could find such conduct unacceptable. Why then is the city not required to live up to at least the same minimal standards of professional competence which would be demanded of a private detective?

So if someone volunteered or was paid to protect her and failed as spectacularly at it as the NYPD did, THEY would be held liable, but the City is not.

Scot Peterson was paid to protect the kids in Marjory Stoneman Douglas High School. It was his JOB. And he failed them. Criminally.

I hope he spends the rest of his life in prison contemplating his failure.

UPDATE:  Gun Free Zone has a different take.

You Need to Read This

Duncan v. Becerra, United States District Court, Southern District of California.

When the decision begins:

Individual liberty and freedom are not outmoded concepts. “The judiciary is – and is often the only – protector of individual rights that are at the heart of our democracy.” –Senator Ted Kennedy, Senate Hearing on the Nomination of Robert Bork, 1987.

you KNOW you’re in for a good read. Hat tip to Joe Huffman.

Edited to add this excerpt from page 62:

Ten years of a federal ban on large-capacity magazines did not stop mass shootings nationally. Twenty years of a California ban on large capacity magazines have not stopped mass shootings in California. Section 32310 is a failed policy experiment that has not achieved its goal. But it has daily trenched on the federal Constitutional right of self-defense for millions of its citizens. On the full record presented by the Attorney General, and evidence upon which there is no genuine issue, whatever the fit might be, it is not a reasonable fit.

vi. irony

Perhaps the irony of § 32310 escapes notice. The reason for the adoption of the Second Amendment was to protect the citizens of the new nation from the power of an oppressive state. The anti-federalists were worried about the risk of oppression by a standing army. The colonies had witnessed the standing army of England marching through Lexington to Concord, Massachusetts, on a mission to seize the arms and gunpowder of the militia and the Minutemen—an attack that ignited the Revolutionary war. With Colonists still hurting from the wounds of war, the Second Amendment guaranteed the rights of new American citizens to protect themselves from oppressors foreign and domestic. So, now it is ironic that the State whittles away at the right of its citizens to defend themselves from the possible oppression of their State.

It’s good before page 62, but it just keeps getting better.

I can’t imagine what the 9th Circus will do with this decision when it’s inevitably appealed.

District Court Judge Roger T. Benitez for either the 9th Circuit Court of Appeals or the Supreme Court.


I know Mike Lee is being promoted for the opening Supreme Court seat, but he’s currently part of the (tiny) Republican majority in the Senate.  Should he be the successful nominee, his most likely replacement would be Mitt Romney.

Trey Gowdy, on the other hand, is a member of the House and is not running for reelection. He’s a supporter of the Tea Party, and if you’ve watched any of the videos of him grilling department officials and others, he’s pretty damned impressive. He’s qualified, and I think he’d be an excellent choice.

What say you?

Is Broward County a Smaller Version of Chicago?

There’s been a lot of outrage toward Broward County, FL’s Sheriff Scott Israel over his department’s lack of response to the rampage shooting at Marjory Stoneman Douglas High School. See also this.  I’d like to point out that the Broward County Sheriff’s Department has a longer history that people should be aware of.

During the waning days of the 1994 Assault Weapons Ban (that wasn’t), then-Sheriff Ken Jenne invited CNN’s John Zarella to demonstrate to him the difference between the then-legal semi-automatic weapons and those that had been banned by the 1994 AWB.  It was one of the earliest things I posted about here at TSM.

He had a deputy fire four rounds from a (legal) AK-clone into cinderblocks.

He then demonstrated that rifle rounds from that AK-47 clone would penetrate the “bulletproof” vests worn by law enforcement – vests that are rated, at best, to stop pistol rounds. Zarella was shocked. He was told that the rifle held only ten rounds, as per the law. He was not told that 30-round magazines were still legal and still fit in that rifle.

Then he ostensibly demonstrated a banned AK-clone. Thirty-round magazine, FULL-AUTO.

A transcript of the clip (video not available) is here.

The NRA responded to this episode of “fake news.”

And Sheriff Jenne? Well, he suffered a rather spectacular fall from grace not long afterward.

Is Broward County a smaller version of Chicago?

Quote of the Day – Daniel Greenfield Edition

Daniel Greenfield, Shillman Journalism Fellow at the Freedom Center, aka “Sultan Knish” has a piece up on Frontpage Mag entitled The Civil War is Here.  QotD:

We can have a system of government based around the Constitution with democratically elected representatives. Or we can have one based on the ideological principles of the left in which all laws and processes, including elections and the Constitution, are fig leaves for enforcing social justice.

But we cannot have both.

Some civil wars happen when a political conflict can’t be resolved at the political level. The really bad ones happen when an irresolvable political conflict combines with an irresolvable cultural conflict.

That is what we have now.

The left has made it clear that it will not accept the lawful authority of our system of government. It will not accept the outcome of elections. It will not accept these things because they are at odds with its ideology and because they represent the will of large portions of the country whom they despise.

The question is what comes next.

Yes it is.


Quote of the Day – Jerry Pournelle Edition

We have always known that eternal vigilance is the price of freedom. It’s worse now, because capture of government is so much more important than it once was. There was a time when there was enough freedom that it hardly mattered which brand of crooks ran government. That has not been true for a long time — not during most of your lifetimes, and for much of mine — and it will probably never be true again.

We voted our way into this.

We won’t be voting our way out of it.

Gun Content

So I’ve cut way back posting here, but I’m still occasionally answering stuff over at Quora.  Seems a waste to let this one vanish in their bit-buckets, so here’s a question-n-answer with an associated comment thread I did recently.

The question was:

Why are guns a right in the US, meanwhile education and healthcare are not?
The question is not about whether or not the government will prevent you from having an education/healthcare. My question is about why education and healthcare aren’t considered in the constitution.

I stumbled onto it fairly early, so there weren’t many answers, but most of them talked about how the Constitution conferred rights on citizens, etc. Here’s my answer:

Oy vey. After reading the current answers (there are eight not downvoted enough to be hidden) it becomes blindingly obvious that our free “education” system has failed pretty dramatically. As one student stated “I Was Never Taught That Knowledge.”

The fundamental question is “What is a ‘Right’?”

Several people here state that education is a right, or that healthcare is a right.

No, they’re not.

While I’m not an Objectivist, I think Ayn Rand was correct when she stated:

A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all others are its consequences or corollaries): a man’s right to his own life.

As others have stated, “guns” aren’t a right, the right to self-defense – protection of one’s own life – is. The right to keep and bear arms is its corollary, for if denied the tools of that defense, the right is essentially stripped.

Education? You have the right to study anything you wish. What you don’t have is the right to make someone teach you. Health care? Same thing. You have the right to take care of yourself, but not force others to care for you.

Because forcing others violates their rights.

So why is the right to arms listed in the Bill of Rights, but education and healthcare are not? Because the Constitution is a legal document that establishes the limits of power of a governing body. If the Constitution were a document that said only what government could not do, it would be infinitely long. Instead, the body of the Constitution itself lists the powers that the Federal government has, and the mechanism under which those powers are established, maintained and exercised. The Bill of Rights is a (limited) list of things that government is warned explicitly not to trifle with, and a warning that there are other such rights not so listed.

The Tenth Amendment, too, is a limit that basically says “Only powers defined here belong to the Federal Government. Everything else is a power reserved to the States or The People. Hands off.”

So of course that’s the first one that got folded, spindled, mutilated and incinerated.

So what do we gather from this? That EDUCATION and HEALTHCARE are not in the purview of the FEDERAL GOVERNMENT. It’s not the job of the Federal Government to provide these things, subsidize these things, or regulate these things except as they affect interstate commerce. (A clause that has been stretched to obscene lengths ever since Wickard v. Filburn.)

It doesn’t matter if they seem to be good ideas. Those powers were not given to the Federal Government by the Constitution. They’re (as you observed) not mentioned in that document. They’re among the “powers not delegated to the United States by the Constitution.” And they’re not rights.

But they are most definitely powers.

I got a lot of positive responses, and the answer got spread around a lot (17.4k views so far), but this was the best comment thread I think:

Garry McConnell:
Successfully arguing that education and health care are not rights does not by extension prove that it isn’t a good idea for the federal government to invest in these areas. It might be that conditions have changed enough in 250 years that individual responsibility and hard work cannot alone pay for a child’s education or their uninsured cancer treatments, and that by extension a small class of people has an unfair advantage in the life, liberty and happiness department.

You also might consider that when the Founders spoke of defence, and the amenders referred to guns, they did so in the context of raising state militias, not foreseeing a $600 billion Pentagon, and that in the case of personal self defense they probably would have considered a 50 round semi-auto a tad excessive.


“Successfully arguing that education and health care are not rights does not by extension prove that it isn’t a good idea for the federal government to invest in these areas.”

That’s not the argument. The argument is – good idea or not – the Federal government wasn’t given those powers. You want to give the Federal government those powers? Article V spells out how to amend the Constitution. Have at it.

“It might be that conditions have changed enough in 250 years that individual responsibility and hard work cannot alone pay for a child’s education or their uninsured cancer treatments, and that by extension a small class of people has an unfair advantage in the life, liberty and happiness department.”

But why should it be the job of the FEDERAL GOVERNMENT to correct this iniquity? Why should it be granted the powers necessary to do this? Has history not shown what happens when governments accrue more and more power? (See your “$600 billion Pentagon” comment.)

Garry McConnell:
Well, my answer is because I don’t think the country can prosper without all citizens having reasonable access to health care and education, and costs in those fields have risen beyond the ability a hard working middle class family to afford. I feel it is wrong in civilized, wealthy country for a family to be ruined financially by a single medical bill. I think it is scandalous that a simple blood test costing $50 in Canada is billed at $5000 in one US state, and governments in other countries are able to drive down the cost of drugs and procedures by being the “single buyer”.

I’m aware of the constraints of the national debt, but I feel the country is in need of a reassessment of its budget priorities. We likely have different views on what has happened since the Depression; I do not believe the country would have survived without the government assuming a greater role in the economy, for example making education available to returning WW2 soldiers, and creating a viable middle class. I know that other democratic countries have offered public or hybrid health care systems that deliver equivalent quality at less than half the cost as a % of GDP. Finally, on a global scope I doubt the planet can survive another 100 years of growth-driven priorities and extreme concentration of wealth. And I don’t care if you label those views socialism, this is the only country where that’s an insult. I understand and respect your arguments, Jefferson is one of my favorite quotes, I just think the world can no longer afford the degree of economic freedom you prescribe.

I could be wrong, I’m not Einstein. I frequently fault liberal governments for spending on everything instead of setting clear priorities. Perhaps the country needs a new approach; the severe blue/red discord is not healthy.

“…and costs in those fields have risen beyond the ability a hard working middle class family to afford.”

And why is that? I don’t think it’s because of a lack of government regulation.

“… I feel the country is in need of a reassessment of its budget priorities.”

Here we agree on the generality. On the specifics I suspect not so much.

“I know that other democratic countries have offered public or hybrid health care systems that deliver equivalent quality at less than half the cost as a % of GDP.”

While depending on the U.S. to provide not only their security but the majority of new drugs, new medical procedures, and new medical technologies.

“Finally, on a global scope I doubt the planet can survive another 100 years of growth-driven priorities and extreme concentration of wealth.”

And how has this “extreme concentration of wealth” come about? Through government regulation. See Regulatory capture and Rent-seeking. So, hey! Let’s give the government some more power to decide who wins and who loses! Let’s give it control over another 1/6th of the total economy! What could go wrong?

“…I don’t care if you label those views socialism, this is the only country where that’s an insult.”

That’s because this is apparently the only remaining country that actually grasps what an abysmally bad idea it is.

“Jefferson is one of my favorite quotes, I just think the world can no longer afford the degree of economic freedom you prescribe.”

Perhaps you’ll like these quotes from Milton Friedman:

“I frequently fault liberal governments for spending on everything instead of setting clear priorities.”

Friedman has one for that, too:

“Perhaps the country needs a new approach; the severe blue/red discord is not healthy.”

On that we also agree. But that divide is the result of 100+ years of public education pushing the idea that freedom is scary and dangerous, and we’d be much better off being told what we can and can’t do by our supposed betters.

I’ve concluded that it’s a little late to try and overcome that.

Garry McConnell:
Sorry, Friedman has always left me cold. I don’t believe freedom stands alone, it comes with responsibilities to our fellow man. And contrary to capitalism, every dollar isn’t equal. The dollar spent feeding a starving child is simply more valuable than the one going towards a trust baby’s second yacht. If economic freedom is creating too many yachts compared to starving children, it isn’t working. And I don’t believe that if government just got out of the way freedom would solve the world’s greatest problems. I think we would have more poverty, pollution, and corruption, and as class concentration increased, we would ironically have less freedom for most people.

“Sorry, Friedman has always left me cold.” Says the man who also stated: “I don’t care if you label those views socialism, this is the only country where that’s an insult.”

Quelle suprise.

“The dollar spent feeding a starving child is simply more valuable than the one going towards a trust baby’s second yacht.”

No, it’s a dollar. How you feel about it does not change its value.

“If economic freedom is creating too many yachts compared to starving children, it isn’t working.”

How many is “too many”? Who gets to decide? And, more importantly, who gives those people the power to restrict my economic freedom?

I don’t have these comment thread discussions in order to change the minds of the people I’m sparring with – I know that’s a waste of time – I do it so that interested third parties can look at both sides of the argument and see perhaps something they’ve not thought about before. So, even though he “leaves you cold,” here’s Milton Friedman on Donahue discussing “greed” and government, about which I’ll have more to say below:


“…I don’t believe that if government just got out of the way freedom would solve the world’s greatest problems.”

That’s the difference between us, then. Because freedom has lifted more people out of poverty than anything else humanity has tried, and as they rise out of poverty they prefer a cleaner environment (that now they can afford to have) and they oppose corruption as it tends to limit their freedom. Adam Smith’s “invisible hand” at work. (Would I be correct in assuming that Smith “leaves you cold” as well?) Friedrich von Hayek in his Road to Serfdom has this to say about Smith:

“Perhaps the best illustration of the current misconceptions of the individualism of Adam Smith and his group is the common belief that they have invented the bogey of the ‘economic man’ and that their conclusions are vitiated by their assumption of a strictly rational behavior or generally by a false rationalistic psychology. They were, of course, very far from assuming anything of the kind. It would be nearer the truth to say that in their view man was by nature lazy and indolent, improvident and wasteful, and that it was only by the force of circumstances that he could be made to behave economically or carefully to adjust his means to his ends. But even this would be unjust to the very complex and realistic view which these men took of human nature. Since it has become fashionable to deride Smith and his contemporaries for their supposedly erroneous psychology, I may perhaps venture the opinion that for all practical purposes we can still learn more about the behavior of men from the Wealth of Nations than from most of the more pretentious modern treatises on ‘social psychology.’

“However that may be, the main point about which there can be little doubt is that Smith’s chief concern was not so much with what man might occasionally achieve when he was at his best but that he should have as little opportunity as possible to do harm when he was at his worst. It would scarcely be too much to claim that the main merit of the individualism which he and his contemporaries advocated is that it is a system under which bad men can do least harm. It is a social system which does not depend for its functioning on our finding good men for running it, or on all men becoming better than they now are, but which makes use of men in all their given variety and complexity, sometimes good and sometimes bad, sometimes intelligent and more often stupid. Their aim was a system under which it should be possible to grant freedom to all, instead of restricting it, as their French contemporaries wish, to ‘the good and wise.’

(Bold my emphasis.) Government is the concentration of power into the hands of the few. Throughout history government has existed not to “solve the world’s greatest problems” but to protect and expand the power and privilege of the powerful and privileged. That power corrupts and attracts the already corrupt. It’s human nature. As Friedman asks in that clip, where are you going to find these angels who are going to organize society for us?

Thomas Paine had it right in Common Sense: “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil….” A necessary evil – best kept small and watched closely. You want to feed starving children? Please, be my guest. Use your individual freedom. Start a GoFundMe page, Patreon, form a group like the Masons or Elks. Try to convince that trust fund baby to contribute. But don’t hand more power to the government in the belief that they are somehow better human beings – “the good and the wise” – just because they were elected to office or collect a government paycheck.

Ask the Venezuelans.

Garry McConnell:
You’re right, of course, we are going around in circles. Just one more point. People who claim they don’t want the government to interfere in the economy or peoples lives are sometimes inconsistent. Freidman, for example, thought the Fed should have printed its way out of the Depression, which can add significantly to the central bank’s balance sheet, expose the Treasury/taxpayer to risk, and in the worst case turn a deflation into a hyperinflation. It also, as we saw in 2008, can be a way to bail out Wall Street banks who should be allowed to fail if we are truly in a free economy.

I also find those preaching liberty are sometimes the same ones passing laws telling people how to lead their lives or supporting extreme government surveillance options. Or my favourite: turning the Constitution’s guarantee of freedom of religion on its head and insisting on “religious freedom”, which often is held up as the right to discriminate without regard to the law.

Anyhow, thanks for being civil. Cheers.

We’re not really going around in circles, but we do differ on first principles, so there cannot be any real agreement reached. Regardless, the discussion serves to expose readers to two vastly different worldviews, and at that it was useful. Thanks to you for the civility as well.

Inconsistency is found on both sides of the aisle – human nature, again. “Liberal” used to mean “in favor of maximizing individual liberty.” Now, subsumed into the “progressive” bandwagon (and like Vizzini’s “inconceivable!”) “Liberal” means something entirely different. Like the “liberals” being for the right to choose except when it comes to where you send your kids to school, what size soda you should be allowed to purchase, how much salt you can put on your food, what size car you should be allowed to drive, whether you can opt out of purchasing health care insurance, what you can say in public, what you can believe with respect to climate change, who you can associate with (as long as you’re not a member of a protected class), which flags you can fly, what books you can burn, who should be banned from speaking on college campuses, etc. etc. etc.

You illustrate “religious freedom” being “turned on its head” because (for example) a Christian baker didn’t want to make a cake for a gay wedding because homosexuality is a sin for Christians. But apparently it’s perfectly OK to deny service to Trump voters because they believe the wrong things.

Pot? Kettle.

I think any business should be able to deny service to anyone for any reason they wish. If they’re assholes, it’s easier for me to avoid them if they wear their “(_*_)” tattoo on their foreheads for all to see. But that’s just me.

WRT Friedman, nobody’s right all the time. As of this moment our nation is $19.9 trillion in debt, up $8 trillion in just the last eight years. I’m wondering why we don’t have hyperinflation right now, and the only reason I can come up with is that the Dollar is the world’s reserve currency.

To close, here’s an interesting Venn diagram I ran across a few years ago for you to think on:

I would place myself on that diagram somewhere between Minarchism and Paleo-Conservatism, shading a lot closer to Minarchism.

I imagine the idea of a Federal government that small frightens you.

Garry McConnell:
Interesting, thanks.

Modern Liberal

Again, quelle suprise! 😉

I kind of enjoyed that and thought I’d share.

This is the Kind of Person “Reasonable Regulation” Would Disarm

On January 12, an Arizona Highway Patrol officer responding to a rollover wreck was attacked by the driver of the vehicle in the incident.  The officer was shot in the shoulder and chest, and then the assailant physically assaulted him, trying to bash his head on the pavement.

A passing motorist saw the assault, stopped and exited his vehicle with a handgun, ordered the attacker to stop, and upon his failure to respond and the officer’s cries for assistance, the motorist shot the assailant, killing him, and possibly saving the life of the officer.

In a statement given today, the emotional shooter described the incident.  Rambo he is not:

DPS Director Frank Milstead discusses the incident in more detail:

Not an off-duty cop. Not ex-military. Just a guy who goes shooting “three or four times a year.”

Moreover the Samaritan, Thomas Yoxall, had a felony conviction in 2000 that would have rendered him a “prohibited person” under 18 U.S. Code § 922 (g)(1). However, “In October 2003, a Superior Court judge vacated Yoxall’s guilty judgment and restored his right to possess a gun.”

We’re told that dangerous criminals like Yoxall can’t be trusted with a firearm. Trooper Ed Anderson, I’m sure, is glad that he was armed.

About Damned Time

I have complained on this forum for quite a while about 18 USC 922(g)(1) dating back to 2005.  Recently over at Quora someone asked What would you change about American gun laws? My answer:

It would be simpler to ask “What wouldn’t you change about America’s gun laws?” Other answers here have been interesting, but I think in this case I will answer a slightly different question: “What ONE gun law would you change if you could?”

I would change 18 U.S. Code § 922 (g)(1)

It shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Do you have any idea how many “crimes” are “punishable by imprisonment for a term exceeding one year”? Note that you don’t have to actually be sentenced to “more than one year,” just that the sentence could be more than one year.

Here’s a few examples:

It used to be that “felony” meant:

a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death.

Now misdemeanors come with possible sentences of two years, and you can be charged with a felony for failing to pay for a movie ticket. And there’s no path to get your rights back.

If I could change nothing else, I’d change that.

Well, it’s being challenged in court, and one of the lawyers challenging it is Alan Gura (h/t to SayUncle for the pointer).  Gura won in the 3rd Circuit, but is also pursuing a similar case in the D.C. District Court.  The government has filed a petition for certoriari to the Supreme Court after their loss in the 3rd Circuit.  Hopefully a good replacement for Scalia will be seated on the Court in time to hear it, should they grant cert.

On an unrelated note, I just realized that this is my first post for 2017.  I guess I really am cutting back.