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

Posted: November 22, 2013 - 11:41pm

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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mikeng1994
8196
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mikeng1994 11/25/13 - 09:20 am
1
1

Give me just one valid reason

Give me just one valid reason why it is not ok to kill a person who is holding you up at gun point Quill.

At that point the law says we can be judge, jury, and executioner. Why does this always come up by the haters?

crypted quill
10636
Points
crypted quill 11/25/13 - 10:12 am
1
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The Ten Commandments

"...one valid reason why it is not ok to kill"

You shall not kill.

[Exodus Chapter 20]

mikeng1994
8196
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mikeng1994 11/25/13 - 10:24 am
1
1

You have to believer before

You have to believer before you can quote it Quill. Besides, the Israelites were quite efficient at it while defending themselves. Defending being the key word and tricky phrase here.

crypted quill
10636
Points
crypted quill 11/25/13 - 11:03 am
1
1

Judge much Mike? Judge not,

Judge much Mike?
Judge not, and ye shall not be judged: condemn not, and ye shall not be condemned: forgive, and ye shall be forgiven: Luke 6:37

Interpreting scripture to support your beliefs...EXCELLENT!
Thy word is a lamp unto my feet, and a light unto my path...the bible is a gateway drug filled with the spirit.

It's easy to gloss over words ('tricky phrases') you don't understand, 'Eh Mike?

fdsjfsdjfsda543543543
2357
Points
fdsjfsdjfsda543543543 11/24/13 - 12:31 am
3
3

The attorney general already

The attorney general already issued an opinion saying open carry wasn't legal. Short of a court interpretation, I'd trust the attorney general over the musings of our local prosecutor.

It is a bad idea at best. Open carry proponents are terrorists anyway. They are just wanting to scare and intimidate people by walking around with a gun in plain view. Witness the recent gun toting mob in a Dallas Texas suburb that congregated in a restaurant parking lot because some people were meeting there to talk about gun violence.

rathjen
667
Points
rathjen 11/24/13 - 04:44 am
3
2

.

I wouldn't call anyone who is trying to change the law peacefully a terrorist. I would say in this case they are misguided by some vagueness in the legislature.

The open carry proponents better be careful what they are asking for here. All it takes is one idiot causing chaos at a public function - and a majority of the business owners will say enough and ban people with conceal carry licenses from carrying them on their premises.

faulknerwatchdog
580
Points
faulknerwatchdog 11/24/13 - 02:27 pm
4
2

Name calling already?

It's a bit childish to assume, and accuse, law-abiding gun carriers to be terrorists. Nobody brazenly carries a handgun on their hip as they walk into a bank, school, or stand on the sidelines of a marathon.

The greatest danger in citizens carrying openly falls to the gun-toters themselves in that it makes them a target to a real terrorist who has nothing to lose. In that case, though, whether they are armed or not, they are likely to be targeted. On the other hand, people carrying a handgun openly are expected to and should become more responsible and aware of their surroundings, not only because they carry a deadly weapon, but because they are by default placing themselves in the role of protector and defender. If you don't want that responsibility, don't carry a gun.

arkansan
741
Points
arkansan 11/24/13 - 03:09 pm
3
2

right.......

"they are by default placing themselves in the role of protector and defender"

Like we need more George Zimmermans out there. Untrained for a high pressure situation they have no business being in.

DanCDaves
2704
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DanCDaves 11/24/13 - 03:36 pm
2
3

do you even have a point?

I'm sure people are going to be 'out looking' for 'pressure situations'. Just like the cops are there in the pressure situation every time to stop crimes before they happen (durp).

The first time someone uses it brazenly and without cause, the law will be enforced.

arkansan
741
Points
arkansan 11/24/13 - 07:44 pm
3
1

Oh.....

So it's not about protecting yourself, it's about playing cop.
Concealed weapon is more than adequate for your own protection. Strapping on a side arm for everyone to see is about being billy bad as*. If you want to be a cop, go through the training and become one. (durp)
We don't need an untrained want a be police force wandering the city.

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