Did Arkansas Act 746 of 2013 legalize open carry of a handgun without a concealed-carry license?

Plain-English summary

Three Arkansas legislators asked the AG how Act 746 of 2013 affected carrying a handgun in public and in a vehicle. The AG said the amended carrying-a-weapon offense requires possession with a purpose to attempt to unlawfully employ the handgun as a weapon against a person. Mere possession, including a loaded handgun, does not by itself establish that unlawful intent. The AG also said the state bears the burden of proving possession and unlawful intent.

The opinion gave four qualifications. An officer may investigate and detain on reasonable suspicion of a violation, assessed from the circumstances. Other laws still restrict possession in particular places, including publicly owned buildings and State Capitol grounds. Private owners or occupants may exclude handguns from their property. And the concealed-handgun licensing scheme remained in force: the AG said a person may not carry a concealed handgun in public without a properly issued license.

The AG treated carrying a weapon “upon a journey” as permissible under the amended statute. She read “journey” as generally covering travel by vehicle outside one's home county, including travel within the home county en route to an outside destination. She excluded brief, routine trips across a county line and said the exception generally applies only while the weapon remains in the vehicle. She acknowledged that the new statutory definition left some situations unclear. For a concealed handgun carried outside the vehicle, she said a concealed-carry license was necessary.

Currency note

This opinion describes the AG's 2015 reading of Act 746 and related laws. Check current firearms and licensing law before relying on it for a particular carry decision.

Background and statutory framework

Act 746 changed the carrying-a-weapon offense by adding “attempt to unlawfully” to its intent requirement. It also changed listed circumstances from affirmative defenses to instances when carrying a handgun is permissible. The AG concluded those changes defeated any inference of unlawful intent from a loaded handgun alone. The opinion does not say that every place or method of carrying is legal.

The AG separately discussed police inquiry, public-property restrictions, private-property exclusions, concealed-carry licenses, and the journey exception. For the journey issue, she relied on the new definition, “travel beyond the county in which a person lives,” and on the stated historic purpose of protection against perils of the highway. She urged legislative clarification because the statute had caused confusion.

Common questions

Does possession of a loaded handgun alone prove the amended offense?
No. The AG said the offense requires a purpose to attempt unlawful use against another person and rejected an inference of that purpose from mere loaded possession.

May an officer still stop someone carrying a handgun?
The AG said an officer may stop and detain someone reasonably suspected of violating the offense when necessary to identify the person or determine whether the conduct is lawful. Suspicion depends on circumstances, including demeanor, information from others, and proximity to known criminal conduct.

Did Act 746 remove concealed-carry licensing?
No. The AG said the licensing laws remained in force and a concealed handgun could not be carried in public without a properly issued license.

Does crossing a county line always make a trip a journey?
No. The AG's reading excludes brief, routine trips such as a quick visit to family, work, or a restaurant in an adjacent county. She described the exception as generally limited to vehicle travel outside the home county.

What if the handgun leaves the vehicle during a journey?
The AG said the journey exception generally stops applying while the weapon is outside the vehicle. The separate intent rule still governs the carrying-a-weapon offense, and she said concealed carry outside the vehicle requires a license.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-064
August 28, 2015
The Honorable Jon Woods
State Senator
P. O. Box 8082
Springdale, AR 72766

The Honorable Tim Lemons
State Representative
38 Brentwood Cove
Cabot, AR 72023

The Honorable Nate Bell
State Representative
P. O. Box 2103
Mena, AR 71953

Gentlemen:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have asked for my opinion about Act 746 of 2013, which amended Ark. Code Ann. § 5-73-120(a). This section of the Code establishes the misdemeanor crime of "carrying a weapon." Your questions address the effect of Act 746 on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

INTRODUCTION AND SUMMARY

Act 746 has created some confusion among both the people of Arkansas and law enforcement in Arkansas on these questions. Ordinary Arkansans want to know where and when they may legally possess a handgun. Arkansas law enforcement wants to understand what the law does and does not prohibit so that law enforcement can continue to keep us safe while respecting the rights of all Arkansans.

Ultimately, the confusion created would be best alleviated by additional legislative action to clarify what Act 746 was trying to accomplish. Nonetheless, my opinion below (and the attached addendum) is intended to provide as much clarity as possible to both law enforcement and ordinary citizens by explaining how I believe Act 746 currently bears on the ability of Arkansans to legally possess handguns on their persons and in their vehicles.

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 746. 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. However, there are four critical caveats to my opinion:

First, any 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 § 5-73-120(a) 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(a) 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.

Second, other statutes prohibit possession of a handgun in certain circumstances regardless of whether a person has the intent to use a handgun unlawfully. Those statutes still have full force and effect. For example, Ark. Code Ann. § 5-73-122(a)(1) prohibits (with exceptions not relevant here) possessing a deadly weapon "in any publicly owned building or facility or on the State Capitol grounds." So a person could not lawfully bring a handgun onto the State Capitol grounds even though doing so wouldn't necessarily cause a violation of § 5-73-120(a). I provide a non-exhaustive list of those statutes in an Addendum to this opinion.

Third, a private property owner or occupant is still entitled to keep handguns (and other firearms) and persons with handguns (and other firearms) off his, her, or its property. If a person enters or stays on private property against the owner's or occupant's stated desire that he or she not enter or that he or she leaves, that person may be guilty of criminal trespass. See Ark. Code Ann. § 5-39-203 (Repl. 2013).

Fourth, the laws requiring a license to carry a concealed handgun still have full force and effect. Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest that a person may carry a concealed handgun in public without a properly issued concealed-carry license. 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.

QUESTIONS AND DETAILED RESPONSES

You have requested my opinion on three questions concerning Act 746 of 2013. Act 746 of 2013 amended two sections of the Arkansas Code, namely, §§ 5-73-119 and -120, that define offenses involving the possession of a weapon. Given the general focus of your questions, I will limit my analysis to § 5-73-120, which establishes the misdemeanor crime of "carrying a weapon."

You asked whether Act 746 of 2013 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?"

Before its amendment by Act 746, § 5-73-120 made it unlawful to possess a handgun, knife, or club "with a purpose to employ the handgun, knife, or club as a weapon against a person." The statute provided a number of affirmative defenses to prosecution, including for example carrying a weapon on a "journey" and carrying a concealed handgun with a license in a motor vehicle. Act 746 amended § 5-73-120 in two major respects relevant to this question.

First, Act 746 amended § 5-73-120(a) to provide that one commits the misdemeanor crime 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.

By adding the words "attempt to unlawfully," Act 746 partially altered the mens rea (i.e., mental state) element associated with the crime of "carrying a weapon." Under the prior version of the statute, to commit the offense of "carrying a weapon," a person had to possess a handgun, knife, or club with the intent to employ it as a weapon against a person. After Act 746's passage, a person now commits this crime only if he or she possesses a handgun, knife, or club with the intent to attempt to unlawfully employ it against a person.

Second, Act 746 reclassified what was the list of affirmative defenses to the crime of carrying a weapon to circumstances under which it is permissible to carry a handgun. Prior to its amendment by Act 746, the prefatory language to the list stated: "It is a defense to prosecution under this section that at the time of the act of carrying a weapon ...." The prefatory language now states: "It is permissible to carry a handgun under this section if at the time of the act of possessing 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.

The first proposition is clear from the language of the amended statute and I need go no further than this to determine that the statute requires that the possession be "with a purpose to attempt to unlawfully employ" the handgun "as a weapon against a person." In fact, on at least three occasions, the Arkansas Supreme Court has made clear that a person must have the intent required by the statute "in order to violate ... § 5-73-120(a)" (Stoner v. Watlington, 735 F.3d 799, 804-05 (8th Cir. 2013) (citing three Arkansas Supreme Court cases)).

The second proposition requires brief additional explanation. There is a line of Arkansas Supreme Court cases that arguably suggest (mostly in dicta) the existence of a presumption that the possession of a handgun (and certainly a loaded handgun) signifies that the handgun was intended to be employed as a weapon. In these cases, the Court was simply saying that the jury could (but did not have to) presume intent to employ the handgun as a weapon from the fact that the weapon was loaded. Whatever the propriety and effect of this permissive (but not mandatory) jury presumption might have been before Act 746, it does not appear that the presumption can be logically maintained in light of Act 746's amendments. Even if a loaded handgun could give rise to a presumption that the handgun was possessed with the purpose of employing it as a weapon against another person, it is unclear how mere possession of a loaded handgun (without anything else) could give rise to a presumption that the handgun was possessed "with a purpose to attempt to unlawfully employ" the handgun "as a weapon against a person." The logical leap that a person who has a loaded handgun intends to use it unlawfully as a weapon is far more strained than the logical leap that a person who has a loaded handgun intends to use it as a weapon (either lawfully or unlawfully).

The inapplicability of the loaded handgun presumption is further evidenced and supported by the second change that Act 746 made to § 5-73-120: changing the list of affirmative defenses to a non-exhaustive list of circumstances under which it is permissible to carry a handgun. Reclassifying this list from affirmative defenses to permissible circumstances confirms that there are a number of permissible reasons to carry a loaded weapon and that the burden is not on the loaded handgun possessor to prove that he had a fair reason for possessing the handgun. Rather, the burden is intended to remain on the State to prove possession and unlawful intent. In light of this amendment, and certainly when coupled with alteration to the intent element noted above, a presumption of unlawful intent from the mere fact that a weapon was loaded (without anything more) is no longer tenable.

You asked whether it is my opinion that Act 746 of 2013 permits a person to carry a handgun or other weapon, in plain view or concealed, without a concealed handgun license if he or she leaves his or her county so long as he or she is not otherwise prohibited by state or federal law?

Your question implicates what is commonly known as "the journey exception." Under § 5-73-120(c)(4), as amended by Act 746, it is "permissible" to "[carry] a weapon when upon a journey." In my opinion, this means that the offense of "carrying a weapon" simply does not apply to a person who is "upon a journey." By changing the journey exception from an affirmative defense to a "permissible" activity, Act 746 removed this activity completely from the circumstances in which a person might be found guilty of the offense of "carrying a weapon."

Some questions may remain, however, regarding the scope of the journey exception. Prior to Act 746, "journey" had not been statutorily defined, although the Arkansas Supreme Court had provided several guideposts concerning what did and did not qualify as a journey. Act 746 defined the term "journey" as "travel beyond the county in which a person lives." What qualifies as a journey under this new statutory definition remains, at least in certain situations, unclear.

In my opinion, the phrase "travel beyond the county in which a person lives" is ambiguous because the word "travel" is ambiguous. Because the meaning of "travel" is somewhat ambiguous in the context of this statute, I turn to the journey exception's historic purpose "to permit [the carrying of weapons] when necessary to defend against perils of the highway ...." The Arkansas Supreme Court has explained that "as generally understood," the journey exception "signifies travel to a distance from home, and it is not used in reference to travel in one's neighborhood or among one's immediate acquaintances."

Bearing in mind the purpose of the journey exception and the case precedent serving as a backdrop for Act 746, I interpret the journey exception to generally apply when a person is in the process of traveling by vehicle outside his or her county (even if he is within his home county at the time en route to locations outside his county), but not to brief and routine outings (like a five minute drive to see one's family or to work or to a restaurant in the adjacent county). In my opinion, a person carrying a handgun, knife, or club in a vehicle when traveling outside his or her county is not subject to § 5-73-120(a). This is so regardless of whether the weapon is concealed or in plain view in the vehicle and regardless of whether the person has a license to carry a concealed handgun. In my opinion, the journey exception stands separate and apart from the concealed-carry exception so long as the handgun is in the vehicle during the journey.

It is my opinion that, except for truly extraordinary and unique circumstances, the journey exception only applies while the handgun remains in the vehicle. Once the weapon leaves the vehicle, however, the journey exception is generally unavailable for the time the handgun is not in the vehicle, and the person risks violating § 5-73-120(a).

To summarize my opinion related to the "journey exception" question:

• A person is permitted to carry a handgun, knife, or club in a vehicle when traveling outside his or her county, regardless of whether the weapon is concealed or in plain view in the vehicle and regardless of whether the person has a license to carry a concealed handgun;

• If the person takes the weapon out of the vehicle, however, the journey exception no longer applies and the person will risk committing the offense of "carrying a weapon";

• So long as he or she has no intent to unlawfully employ the handgun, knife, or club against another person, the person may lawfully carry the weapon outside the vehicle. To lawfully carry a concealed handgun, however, it will be necessary to obtain a concealed-carry license.

Sincerely,
LESLIE RUTLEDGE
Attorney General

LR:cyh
Enclosure