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'Ambiguous' open carry law still causing confusion

Posted: February 18, 2014 - 4:59pm

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.” 

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arkansan
1038
Points
arkansan 02/18/14 - 08:38 pm
2
1
Joe.....

The only people finding it 'Ambiguous' are the people that want to open carry. I guess that would be you, Joe. As you keep writing about this confusion over and over again.
Sure, you might find a sheriff or judge running for office that might agree with you. But the Legislators, Governor, Attorney General, State Police and most other law enforcement in the state all disagree.
If you want to change the law Joe? Try writing about that instead. But continually trying to create confusion were it doesn't exist, doesn't change the law.

Joe Lamb
315
Points
Joe Lamb 02/19/14 - 02:02 am
1
1
Okay.

Okay.

majstoll
12
Points
majstoll 02/18/14 - 08:47 pm
1
1
Open carry legal in Arkansas, as is unlicensed concealed carry

Let's forget for a moment that the Second Amendment protects open carry (See DC v. Heller). When a legislature amends a statute, it is presumed to know what it is doing; in this case, the legislature completely re-wrote the elements of the offense of carrying a pistol to require a mental state never before mentioned in this statute.

Prior to HB 1700, the main criminal issue pertaining to carrying weapons in § 5-73-120 was whether a person was carrying a handgun, knife, or club on or about his or her person – a single element of offense. Once that element was established, a Defendant could only assert a “defense” that she was carrying pursuant to a number of statutory exceptions such as pursuant to a concealed weapons permit (CWP), travelling on a “journey,” (a term with no statutory definition), etc.

Effective August 15, 2013, when HB 1700 takes effect, any arrest, charge, or conviction for violating § 5-73-120 can only lawfully arise if two elements of the offense are present. First, that a person was carrying one of the specified weapons. And second, that she was doing so “with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” [emphasis added].

In any event, under the rule of lenity, state statutes are construed such that ambiguities in a criminal statute relating to prohibitions and penalties be resolved in favor of the defendant.

This isn't even a close call guys. Learn more at http://www.examiner.com/article/arkansas-to-become-the-nation-s-45th-ope...

arkansan
1038
Points
arkansan 02/18/14 - 09:43 pm
0
0
Actually....

Read DC vs Heller. That's not correct...

In Dc vs Heller the courts ruled, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

They also ruled "the DC must permit him to register his handgun and must issue him a license to carry it in the home." So I would assume that the Supreme Court thinks the 2nd amendment allows the use of gun permits and licenses like concealed carry.

Joe Lamb
315
Points
Joe Lamb 02/19/14 - 12:10 am
2
1
Thanks everybody for reading

Thanks everybody for reading and joining in the conversation. Here are a few points to guide discussion:

• The law can fairly be interpreted to allow open carry or to not allow open carry, and indeed the law is being interpreted differently in different jurisdictions within the state. Cody Hiland, our prosecutor, disagrees with Dustin McDaniel's reading of the amended law. They're both right, because there's a fair reading of the law both ways. There ain't no good guys. There ain't no bad guys. There are only people who interpret an ambiguous law differently, and they just disagree.

• Ambiguity in the law of the land is universally agreed to be a bad thing, and ambiguous laws are, necessarily, a failure of the legislature that passed them, to some degree.

• Though an important case, D.C. v. Heller doesn't have anything to do with the issue at hand. In Heller, the Supreme Court held that a city ordinance criminalizing possession of an operable handgun in a home was enacted in violation of the Second Amendment. To put it another way, under the holding in Heller, the Second Amendment protects an otherwise lawful firearm owner's right to keep a readily deployable handgun in their home for self-defense.

• Finally, and most importantly, when we at the Log Cabin come across an alternative news website ("blog" has a negative connotation and, to my mind, we've all got an equal stake in the internet) reporting that the LCD got something wrong, or otherwise wrong-footed our coverage of an issue, we're going to treat them as our peers and address their claims with the same respect we'd give a rival newspaper. Or at least that's what I am going to do. The internet in general and Google in particular are great equalizers between the professional journalist and the dedicated amateur. If I do my job right, like I hope I've done with this story, I'll show that there is a difference.

arkansan
1038
Points
arkansan 02/19/14 - 07:49 am
1
0
Joe.....

The ambiguity comes only from the people who want to open carry. Everyone else doesn't seem to have this problem. I guess legislators will have to fix it to make it clear for the hard headed.
Continually writing the same story over and over again, doesn't do anything but stir up controversy. Yes, I know facebook is full of this kind of stuff but that's not journalism. Thought this was a newspaper.

Yes, Dc. vs Heller did protect the 2nd amendment, but it also made it clear that Heller would be allowed to get a license or permit for his weapon. Arkansas already allows people to carry a conceal carry permit for their protection. So yes DC vs Heller really has nothing to do with open carry in Arkansas.

357
1865
Points
357 02/19/14 - 07:53 am
1
0
It really does not matter

It really does not matter which side you stand on in the in the long run regarding open carry, the legislature will be "fixing" this law in the next regular session.

Nichols_Creek
43
Points
Nichols_Creek 02/19/14 - 10:04 am
2
1
No clarification needed

The law as written needs no further clarification. To be charged with carrying a weapon, Firearm, knife, club, the prosecutor must prove UNLAWFUL intent. Arkansas has never had a law that says open carry is illeagal. As far as the comments about Sheriff Cradduck goes, I suggest anyone go to his personal facebook page and do a little research. He was asked the question about open carry on November 30th and his response was " 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 also more paper trails, emails etc, to show his position on the issue.

Agree with open carry or not, the opinion of the AG is just that. His opinion. And if you read it, he never addresses the open carry question, just the journey portion.

To further cloud the issue, since the constitution was brought up. "The right of the people" is used in 4 of the first 10 ammendments. Called the Bill Of Rights. Are the people in the 2nd ammendment any different than the "people" in the other ammendments??? Give it some thought, use logic not emotions.

mikeng1994
11215
Points
mikeng1994 02/19/14 - 10:21 am
4
0
Why does this continue?

All that needs to happen is the state legislature reword the law to make clearly say its intent. In my opinion, it should be to make open carry illegal. Open carry is an offensive stance which has the carrier begging for someone to "mess" with him. Concealed carry, on the other hand, is defensive in nature and usually does not make a person feel unsafe.

You can tell from my avatar how I feel about gun ownership, but open carry is the most absurd idea ever. I do not believe the 2nd protects that in any way.

conwaygerl
5561
Points
conwaygerl 02/19/14 - 10:25 am
4
0
I agree

100% with everything you said.
There is no legitimate need in open carry.

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