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Cops are not permitted to make up law as they go along

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Cops can get touchy about suspects who put their hands in their pockets, lest they have a weapon in there. Imagine if cops were permitted to conduct searches on a hunch, just to increase their safety more, and to decimate individual liberty more in the process. It is bad enough that Terry in reality encourages cops to do a frisk on no more than a mere hunch, and then to prevaricate the presence of reasonable articulable suspicion should they find evidence of a crime.

Praised be the D.C. Court of Appeals for confirming that no crime takes place when a suspect does not honor a cop’s demand to remove hands from the pockets (and here the suspect testified to showing the cop empty pockets and to then returning her hands to the pockets to keep her cold hands warmer). Howard v. U.S., ___ A.2d ___ (D.C. Cir., March 5, 2009). As the court underlined, Ms. Howard acted with passive resistance, and in the District of Columbia, passive resistance is not a violation of the misdemeanor against interfering with a law enforcement officer, which law provides that: "Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer  on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both." D.C. Code § 22-405(b).

Civil libertarians and the pocket lobby can now rest a little easier, with the help of the Howard opinion. Jon Katz