An arguably ambiguous amendment to Arkansas’ “carrying a weapon” statute is still creating confusion.
An alternative news website, arkansaswatch.blogspot.com, published an article on Feb. 9 under the headline, “Log Cabin Democrat Has it Wrong With Cradduck and Open Carry.”
The Arkansas Watch article states that Benton County Sheriff Kelley Cradduck had reversed his position on how the amendment, Act 746, would be interpreted in his jurisdiction. Cradduck has been included in the Log Cabin’s coverage of this issue as an example of a law enforcement official who did not interpret Act 746 as allowing “open carry.”
Cradduck was among the first law enforcement officials to speak out against pro-open-carry organizations, who claimed in July that Act 746 allowed the open carry of handguns in public places where handguns are not otherwise prohibited (weapons are prohibited by ordinance in Conway’s city parks, for example). Cradduck’s position was widely reported in the state media.
According to the Arkansas Watch article, Cradduck had recently responded to the question “This article [referencing a Log Cabin story] claims that it is your position that open carry of firearms is still illegal in Benton County even after act 746. Is that in fact your position Sheriff?” by saying “No, open carry will be allowed.”
“. . . [A]s a Benton County resident I for one am pleased to know that I can disregard the misinformation put out by the state’s establishment newspapers and continue to vote Cradduck,” the Arkansas Watch article concludes.
But according to Benton County public information officer Keshia Guyll, the Benton County Sheriff’s Office has not changed their policy, and anyone who claims that Cradduck has said anything to the contrary “may have misunderstood or been confused,” because anyone carrying a handgun in Benton County without a concealed carry permit may be subject to prosecution, according to Guyll.
Benton County Chief Deputy Rob Holly said that the Benton County Sheriff’s Office “will continue to take the stance and side with the opinion of the Attorney General.” Attorney General Dustin McDaniel issued an opinion in July in which he stated, “I do not interpret Act 746 as authorizing so-called ‘open carry.’”
Guyll said that Cradduck could not comment personally because he has been ill.
The Log Cabin has also received an email from a man who claims to have had a conversation on Facebook.com in which Cradduck said “as long as they are not committing an offense at the time then they are ok......if they are disorderly or public intox and carrying then they could be charged with carrying a weapon.”
There is confusion statewide over Act 746 because the amendment can fairly be interpreted at least two ways. Generally, those who read it as allowing open carry look to the amended plain language of the amendment that makes it illegal to carry a weapon “readily available for use with a purpose to attempt to unlawfully” use it against a person (Italicized language is underlined). Under this interpretation, a person only commits an offense when they try to use a handgun in a criminal act.
Those who don’t read the act as allowing open carry look at the amended language in the context of other state laws — including state concealed carry laws still in effect — and Arkansas Supreme Court case law that says that a person carrying a weapon is presumed to have the intent, or purpose, to use it against a person unlawfully.
To illustrate: if the amended language had been to the effect of “a person commits the offense of carrying a weapon if he or she possesses a handgun . . . and attempts to unlawfully use it against a person” the amendment would be clearer, because it would unambiguously add the element of actually attempting to use the weapon to the offense.
J. Lynn Entrikin, a UALR Law School professor who teaches classes on legislation and statutory interpretation, said that in her opinion it was unclear whether the amended language adds an element of actually attempting to use the weapon unlawfully or “simply modifies” the language describing the purpose of carrying the weapon without creating the additional element of actually trying to use it.
Also, Entrikin said, “I don’t see anything in the amendment in Act 746 that alters the existing judicial presumptions about whether or not a handgun is intended for use as a weapon if loaded, on one’s person, or in a vehicle a person occupies.”
One tool used to interpret vague or ambiguous statutory amendments is a study of the legislature’s intent. So far, only one legislator, Rep. Nate Bell (R-Mena), has publicly said that Act 746 was intended by its sponsors “to decriminalize the open carry of firearms by persons not legally possessing the firearms.”
Sen. Jason Rapert (R-Conway) said in December that he agreed with open carry, but didn’t think the amendment was going to decriminalize it when he voted for it. Rep. Steve Magie (D-Conway), serves on the House Judiciary Committee and said the bill, “as it was presented to us, seemed reasonable.”
“It did not appear that it opened up the right for somebody to strap on their six-shooter and walk into a Walmart,” Magie said.
The amendment, introduced under the title, “An Act Making Technical Corrections” to the carrying a weapon statute, was passed without discussion or substantial opposition in the House Judiciary Committee and then the House and Senate after it was explained by its lead sponsor, Rep. Denny Altes (R-Fort Smith) to be “cleanup” language “recommended by the State Police.” Altes, who unsuccessfully attempted to introduce another bill that would have unambiguously decriminalized open carry in the same General Assembly, has since remained silent on the issue of his intent with Act 746.
According to Entrikin, “It’s highly unlikely that the Arkansas General Assembly would have enacted this statute with such a large majority vote had it understood the amendment to authorize “open carry” for the first time in Arkansas.
“That would be a major change in criminal law pertaining to the possession of handguns [and] it’s hard to imagine how that kind of substantial amendment could properly be characterized as a ‘technical correction,’ as suggested by the Act’s subtitle,” she said.
The one opposing vote was cast against the amendment by Rep. John Baine, who also said in December that he didn’t think the law would decriminalize open carry and that “the majority of the legislature had no idea” either. Baine voted against the law for reasons related to Act 746’s change to the “journey” exception to the carrying a weapon statute as it related to his geographically large home county.
Faulkner County Sheriff Andy Shock and Conway Chief of Police A.J. Gary have said that they won’t instruct their officers to arrest a person for carrying a weapon openly absent some other offense involving the weapon, and 20th Judicial District Prosecutor Cody Hiland, whose jurisdiction includes Faulkner County, has said he wouldn’t prosecute a person for merely carrying a weapon.
Shock and Gary said on Tuesday that they haven’t heard of any problems created by people openly carrying handguns in Faulkner County. So far no arrests for a person openly carrying in a jurisdiction that doesn’t allow it seem to have been made statewide.
Several lawmakers and law enforcement officials, including Cradduck, have said that Act 746’s effect on Arkansas handgun laws may not be settled until a “test case” comes when a person is arrested and prosecuted under the new language.
Until then, what is a legal activity in one city or county in the state may be illegal in another.
“I think it’s clear that the clarification needs a clarification,” Baine said in December. “I don’t want us to have different counties and different judicial districts to have different levels of the bar of justice.”