On August 22, a man named Richard Chambless was arrested in Bald Knob, Arkansas, a hamlet north east of Little Rock, thrown in the klink, and on the 26th, was sentenced to one year of probation and ordered to pay a fine of $2,160.00. Why? For the crime of openly carrying a handgun into a local McDonald’s restaurant, where he stopped to get a drink. According to Arkansas Code § 5-73-120 . . .
a person “commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person….” Persons who have an Arkansas Concealed Handgun Carry License (or have a license issued by another state,) can carry a concealed firearm, but the Natural State did not license the ordinary citizenry to openly carry a firearm. It also lists a number of exceptions under which possession of a handgun is permissible, such as: a person being on a “journey” beyond her home county, or being a law enforcement officer acting in the scope of his official duties.
At least, that was the case until 2013, when the Arkansas Legislature passed Act 746, intended to clarify certain aspects of Arkansas firearms law. Despite his conviction, Chambless claims that Act 746 has turned Arkansas into a permitless open carry state, and intends to keep up the legal fight.
Rutledge, a Republican, was asked recently by three members of the state legislature to issue an opinion on Act 746 because the law “created some confusion among both the people…and law enforcement in Arkansas.” Specifically, the legislators wanted to know whether Act 746 “permits a person not on a journey to openly carry or carry concealed a handgun or other weapon in public without violating the criminal offense of carrying a weapon, § 5-73-120, so long as he or she has no ‘purpose to attempt to unlawfully employ the…weapon against a person?'”
Ms. Rutledge’s answer was in the affirmative — because of the changes wrought by Act 746, a person may now openly carry a firearm while in public, or while in a vehicle, without violating Arkansas firearms law, provided she does not have the intent to “unlawfully employ the handgun as a weapon.”
In my opinion, Act 746’s amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s “possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use” if he or she simultaneously has the intent “to attempt to unlawfully employ the handgun…as a weapon” against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.
In addition, Ms. Rutledge makes it clear that Arkansas’ new Constitutional Carry status is imperfect – it only applies to openly-carried firearms, not concealed firearms:
Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry regime in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a).
Point 4 requires additional explanation. In my opinion, a person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license. I believe this necessarily follows from the concealed-carry licensing scheme that predates Act 746 and that, in my opinion, was unaffected by Act 746. The licensing requirement is recognized in the “concealed handgun” exception under § 5-73-120:
It is permissible to carry a handgun under this section if at the time of the act of carrying a weapon….[t]he person is in possession of a concealed handgun and has a valid license to carry a concealed handgun under § 5-73-301 et seq., or recognized under § 5-73-321 and is not in a prohibited place as defined by § 5-73-306.
In other words: the Attorney-General appears to be saying that these changes have effectively turned Arkansas into a imperfect constitutional carry state – with unlicensed open carry and licensed concealed carry.
The AG doesn’t sound very happy about it, though. She stresses in her introduction (and in her Facebook post) that she does not encourage open carry. She even goes on to state that, even though the open carriage of a firearm is legal, that by itself may generate reasonable suspicion for an officer to stop and briefly detain a person.
[A]ny person who carries a handgun should be aware that a law enforcement officer might lawfully inquire into that person’s purpose. Determining culpability or potential culpability under Ark. Code Ann. § 5-73-120 is initially a matter for law enforcement following guidelines that routinely apply when investigating a misdemeanor involving the danger of forcible injury to persons. A law enforcement officer may stop and detain any person reasonably suspected of violating § 5-73-120 if necessary to identify the person or determine the lawfulness of his or her conduct.
Whether an officer has reasonable suspicion will depend upon a number of circumstance-specific factors. Some of these factors are recounted in Ark. Code Ann. § 16-81-203 (Repl. 2005), including: (1) the demeanor of the suspect; (2) the gait and manner of the suspect; (3) any information received from third persons; and (4) the suspect’s proximity to known criminal conduct. While merely possessing a loaded handgun completely on its own is not enough for reasonable suspicion of a violation of § 5-73-120(a), possessing a loaded handgun in combination with just one additional factor may, depending on the circumstances, be enough to create reasonable suspicion of intent to unlawfully employ the handgun as a weapon (and thus reasonable suspicion of a violation of § 5-73-120(a)).
In other words: just because what you’re doing is perfectly legal, police can still stop you if you look funny. (Though note that she didn’t just make that stuff up about ‘gait and manner’ – that was directly from the Arkansas Code.)
A word of caution: although Attorney-General Rutledge’s opinion is significant, and may indeed impact how the law is interpreted by law enforcement, prosecutors, and judges, it is non-binding, and hardly the same thing as a court decision. In fact, the previous Attorney-General, Dustin McDaniel, was asked in 2013 whether the ‘journal’ exception in Act 746 would permit a person to engage in unlicensed open carry as long as he was journeying beyond his home county; his answer (prepared by Deputy Attorney-General Elisabeth A. Walker) was a resounding “no”.
The answer to your question is “no,” in my opinion. A person does not fall within Act 746’s “journey” exception to the statutes relating to possession and carrying of a handgun simply because the person has left the county in which he or she lives…. I do not interpret Act 746 as authorizing so-called “open-carry”. To the contrary, the journey exception applies only to “travel beyond the county in which a person lives” — a narrow range of activity inconsistent with the concept of “open carry”…. Generally,…Act 746 does not in itself permit a person to possess a handgun outside of his or her vehicle or other mode of transportation while on a journey outside his or her county of residence.
After looking at Act 746, I don’t find Mr. McDaniel’s opinion (as drafted by Ms. Walker) persuasive; it seems that he ignored Act 746’s intent component, and find Ms. Rutledge’s opinion much more persuasive. That said, the wise gun owner residing in or journeying through Arkansas will recognize that the law is unsettled until a court says it is, and even then, it may still enjoy some adventures afterward.
So unless you’re the kind of fellow who enjoys being on the bleeding edge, and doesn’t mind a week or two in the county jail, you might want to hold off on the open carry thing for now. As Mr. Chambless himself put it: “Some people are just set in their ways and aren’t used to seeing guns out in public.” And some of those people are government officials.
Bald Knob’s chief of police, for instance, despite the publicity and deluge of protest comments over the arrest of Chambless, <a href=”
http://www.nwaonline.com/news/2015/aug/30/after-arrest-gun-law-still-fuzzy-to-law/?news-arkansas”?still doesn’t get it:
“It’s hard for me to understand that the law was intentionally made for anyone to tote a gun around,” Balentine said. “What would the purpose of having a [conceal and carry] permit, what would be the purpose of background checks?… Open carry would mean anyone could tote a gun.”
Indeed it doesn’t, as someone familiar with the law could attest. But ignorance related to firearms laws is a common thing with petty bureaucrats.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.