'Open carry' won't be prosecuted, Hiland says

The legality of “open carry” in Arkansas is an open question for many, but 20th Judicial District Prosecuting Attorney Cody Hiland says his office won’t prosecute people for going out in public wearing a gun.

 

In April a piece of legislation introduced by state Rep. Denny Altes (R-Fort Smith) purporting to make “technical corrections” to Arkansas statutes relating to carrying a weapon was signed into law. To many, these “technical corrections” make Arkansas one of a handful of “open carry” states.

Previously the statute, A.C.A. § 5-73-120, defined the offense of carrying a weapon illegally as having a handgun on their person or in their vehicle “readily available for use with a purpose to employ” the weapon against a person. Altes’ amendment changed this to “’readily available for use with a purpose to attempt to unlawfully employ” the weapon against a person.

According to Hiland, the addition of the words “to attempt to unlawfully employ” “fundamentally alters the character and nature of the statute.”

“We’re still going to approach [suspected violations of A.C.A. § 5-73-120] on a case-by-case basis,” Hiland said, “however, it would be intellectually dishonest to suggest anything other than that [the amendments] make it very difficult if not impossible to prosecute a person under this provision.”

Faulkner County Sheriff Andy Shock said that his department’s policy on open carry is to defer to the prosecutor’s judgment and not arrest people solely for carrying a weapon for self-defense. Conway Chief of Police A. J. Gary said that the amendment has made enforcement of A.C.A. § 5-73-120 more difficult because the law is now less clear.

“Basically what we’re doing right now is looking at it on a case-by-case basis looking at what the intent is and what’s going on,” Gary said. “With so many people interpreting (this law) in different ways, how are law enforcement officers supposed to know how to enforce it?”

Attorney General Dustin McDaniel issued an opinion in July stating that he does “not interpret [the amendment] as authorizing so-called ‘open carry,’” Governor Mike Beebe has said that he didn’t think it legalized open carry when he signed it into law, and prosecutors and law enforcement officials differ from jurisdiction to jurisdiciton on whether “open carry” is legal. Garland County prosecutor Steve Oliver told the Hot Springs Sentinel-Record in September that officials would not interfere with armed participants in “constitutional carry” demonstrations, but individuals carrying a weapon by themselves would be cited and their weapon confiscated until the case is resolved.

Oliver’s decision to leave “constitutional carry” demonstrators alone while citing individuals exercising what they feel is their constitutional right is illustrative of why the amended law is creating confusion.

The previous version of A.C.A. § 5-73-120 required prosecutors to prove that the accused had the intent to use the weapon against a person, but the Arkansas Supreme Court has repeatedly held that there is a legal presumption that a person who keeps a loaded pistol in their car intends to use it as a weapon for the purposes of applying the statute, and in the unofficial commentary to the pre-amendment A.C.A. § 5-73-120 this presumption of intent to use a weapon against a person applies to people carrying weapons on them as well.

The intent of demonstrators carrying handguns is clearly not to use them against a person, Oliver told the Sentinel Record, but rather for the demonstration. The intent of an individual walking down the street with a gun is not so clear, he said.

Those who interpret the amended statute as allowing open carry or constitutional carry argue that the amendment does away with these presumptions, and now only creates criminal liability for people who actually try to use the weapon they’re carrying unlawfully against a person. Generally, those who interpret open or constitutional carry as still illegal believe that the presumptions of intent survive the amendment.

A “constitutional carry walk” in Conway is being discussed, and according to Gary Epperson with the group Patriots of Act 746 (the act that amended A.C.A. § 5-73-120), one may be held next month.

Steve Jones, a founder of the organization Arkansas Carry, said that Arkansas Carry isn’t currently organizing “constitutional carry” demonstrations, but does encourage groups of individuals to get together for demonstration walks. Jones organized the state’s first “constitutional carry walk” in Fort Smith, and said that a demonstration in Conway was an early goal of Arkansas Carry. Jones said that the amendment was a good thing for people who can’t afford a concealed carry permit or can’t get one because of physical issues with their fingerprints.

A. J. Gary said that “constitutional carry” demonstrators would not be cited by his officers for carrying weapons, and that it would be treated like any other demonstration.

The amendment also arguably redefines “journey” for the purpose of the statute. In Arkansas, a person on a “journey” may lawfully carry a weapon. Courts have interpreted a “journey” to be a lengthy trip outside of the course of a person’s normal routine. The amended statute is interpreted by some as allowing anyone who travels outside of their home county to carry a weapon under the “journey” exception.

(Staff writer Joe Lamb can be reached by email at joe.lamb@thecabin.net or by phone at 505-1277. To comment on this and other stories in the Log Cabin, log on to www.thecabin.net. Send us your news at www.thecabin.net/submit)

 

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