Arkansas Attorney General issues opinion on open carry


The passage of Act 746 of 2013 has spurred a great deal of commentary and brought about some uncertainty regarding the laws that govern the carrying of a handgun within the State of Arkansas. Most of the commentary has been centered upon the language change brought about by the passage of the Act found within A.C.A. § 5-73-120, which—in part—states the following:

(a) 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, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

Until recently, the Arkansas Attorney General Office had not officially rendered an interpretation of the changes brought about with the passage of Act 746, so the Act’s interpretation rested solely with local prosecuting attorneys and law enforcement agencies across our state. On August 28, 2015, Attorney General Leslie Rutledge released Opinion 2015-64 which contains an official interpretation of the amended statute (A.C.A. § 5-73-120). The following is a portion of Attorney General Rutledge’s Opinion:

While I do not encourage “open carry,” it is my opinion that if a person does not have the intent to “attempt to unlawfully employ a handgun…as a weapon against [another],” he or she may “possess a handgun…on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use” without violating § 5-73-120(a) as amended by Act 7463 That means in general merely possessing a handgun on your person or in your vehicle does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations.

The Eighth Judicial South Prosecuting Attorney Stephanie Potter Black issued the following official statement in a September 3, 2015 memo addressed to the Texarkana Police Department:

In light of the Attorney General Opinion dated August 28, 2015, I believe our policy on open carry should mirror that opinion. Should the Arkansas Supreme Court find differently or the legislature correct the problems with the language in the statute, we should then be able to adopt and enforce our historic policy that is in the better interest and safety for our community, as well as our officers.

“The passage of Act 746 has not only changed the legal manner in which one may carry a weapon on his or her person, but the passage of this Act has also radically changed the manner in which police officers approach their daily duties within our community,” said Lieutenant Todd Harness. “All citizens should remain mindful of other important principles that work together in guiding law enforcement’s response to these changes.”

First, any person who carries a handgun must remain mindful of the fact that under certain conditions, law enforcement officers will lawfully inquire into the person’s purpose for carrying a handgun. Facts and circumstances which cause a law enforcement officer to develop a reasonable suspicion a person is carrying a handgun in a manner that violates A.C.A. § 5-73-120 will always provide the law enforcement officer the lawful right to inquire into the person’s actions. While carrying a handgun openly in plain-view does not automatically violate A.C.A. § 5-73-120, some of the factors that work to influence reasonable suspicion include the following: the demeanor of the suspect; the gait and manner of the suspect; and knowledge the officer may have of the suspect’s background or character; the time of day or night the suspect is observed; whether the suspect is consorting with others whose conduct is reasonably suspect; the suspect’s apparent effort to conceal an article; and the apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.

Secondly, notwithstanding the changes within A.C.A. § 5-73-120, other statutes within Arkansas code govern the carrying of a handgun. The additional statutes include the following:

  1. A.C.A. § 5-73-122 makes it unlawful for anyone other than a law enforcement officer or a security guard to knowingly possess a handgun in any publicly owned building or facility or on the State Capitol grounds. As used within this statute, “facility” means a municipally owned park, football field, baseball field, soccer field, or another similar municipally owned or maintained recreational structure or property;
  2. A.C.A § 5-73-122 sets forth the limitations and prohibited places one may carry a concealed handgun pursuant to a concealed handgun license and remains in full force and effect. As stated within AG Opinion 2015-26, a “person may not lawfully carry a concealed handgun in public without a properly issued concealed-carry license”. That means a person carrying a handgun pursuant to the open-carry changes found within A.C.A. § 5-73-120 may not, to any extent whatsoever, conceal the handgun within public unless the person is in possession of properly issued concealed-handgun license;
  3. A.C.A. § 9-15-207 makes it unlawful for any person who is subject to an order of protection or convicted of a misdemeanor of domestic violence to possess a firearm or ammunition;
  4. A.C.A. § 5-73-104 strictly prohibits anyone from possessing a firearm specially made or specially adapted for silent discharge;
  5. A.C.A. § 5-73-122 strictly prohibits the possession of any firearm by anyone who has been convicted a felony, anyone who has been adjudicated mentally ill or anyone who has been committed involuntarily to any mental institution; and
  6. A.C.A. § 5-73-122 strictly prohibits the possession of a handgun by anyone under eighteen (18) years of age. In addition, this statute also prohibits anyone from possessing a firearm at the following locations: upon the developed property of a public or private school, K-12; in or upon and school bus; at a designated bus stop as identified in the route list published by a school district each year.

Thirdly, a private property owner or occupant or business owner remains entitled to keep all firearms and persons carrying any firearm (inclusive of handguns) off his/her property. Persons who are carrying a handgun pursuant to the open-carry changes found within A.C.A. § 5-73-120 an who enter or remain on private property contrary to the property owner’s desire that he/she not enter or he/she leaves the property may be guilty of criminal trespass, A.C.A. § 5-39-203.

As already stated, the passage of this Act has also radically changed the manner in which police officers approach their daily duties within our community. To that end, the operational policy that governs a police officer’s response and interaction with armed citizens within Texarkana, Arkansas has also changed. This operational change was made mandatory in light of the changes to A.C.A. § 5-73-120 and is intended to ensure officers maintain a tactical advantage during all law enforcement encounters involving armed citizens.

In support of the officer’s safety during such encounters, officers will maintain the appropriate discretion and policy authority to disarm citizens who are openly-carrying handguns (or other weapons) whenever the officer believes the facts and circumstances of the encounter warrant such action. In addition, officers will maintain the appropriate discretion and policy authority to un-holster their duty weapon and challenge all perceived threats involving armed citizens and will de-escalate as soon as the situation has stabilized to the officer’s satisfaction.

Citizens electing to openly-carry handguns who encounter a police officer should follow the officer’s commands and instructions. So long as no laws have been violated and the citizen has not been arrested or deemed to be a danger to himself or someone else, citizens who are disarmed pursuant to a police officer encounter will have their weapon returned to them following the completion of the encounter.

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