Can State Capitol Police arrest someone for carrying an unloaded firearm on the Capitol grounds outside the Capitol Building?

Plain-English summary

Arkansas Secretary of State Mark Martin asked the AG five questions about the State Capitol Police Department's enforcement of Ark. Code Ann. § 5-73-122, the statute governing firearms in publicly owned buildings and on the State Capitol grounds. The core question: could the Capitol Police continue to read § 5-73-122(a)(1) (the Capitol-grounds prohibition) as covering both loaded and unloaded firearms, the way it had been enforcing the law, or did the statute reach only loaded firearms?

Attorney General Leslie Rutledge concluded the Capitol Police interpretation was incorrect. The statute uses different wording for the State Capitol Building (subsection (a)(2)) and for the State Capitol grounds (subsection (a)(1)). The building provision expressly covers firearms "whether loaded or unloaded." The grounds provision bars only a "loaded firearm or other deadly weapon." Under the strict-construction rule for criminal statutes and the void-for-vagueness doctrine, the AG read "other deadly weapon" in the grounds provision as referring to non-firearm weapons, so the statute does not reach unloaded firearms carried outdoors on the Capitol grounds. The Capitol Police should not rely on § 5-73-122(a)(1) to arrest people carrying unloaded firearms on the grounds.

She added three important caveats: (1) the Capitol Police has separate broad authority under Ark. Code Ann. § 12-14-102 to exclude people from the grounds, and a person who refuses to leave can be arrested for criminal trespass; (2) an officer can still stop and detain a person carrying a firearm to determine the lawfulness of the conduct; (3) the opinion only addresses § 5-73-122 and does not foreclose other applicable statutes.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the two subsections of § 5-73-122 compare

§ 5-73-122(a)(1) (Capitol grounds and other publicly owned buildings). Bars knowingly carrying or possessing "a loaded firearm or other deadly weapon" in publicly owned buildings or facilities or on the State Capitol grounds. Class A misdemeanor.

§ 5-73-122(a)(2) (Capitol Building and Justice Building). Bars knowingly carrying or possessing "a firearm, whether loaded or unloaded" inside the State Capitol Building or the Justice Building. Same misdemeanor classification, with one explicit add: the express phrase "whether loaded or unloaded."

The AG zeroed in on that contrast. When the legislature wanted to reach unloaded firearms (subsection (a)(2)), it knew how to say so and did. When it bar only loaded firearms on the grounds (subsection (a)(1)), it left the phrase "loaded firearm" intact and added "or other deadly weapon" only to catch non-firearm weapons. Reading "other deadly weapon" to swallow unloaded firearms (which is what the Capitol Police had been doing, drawing on the Criminal Code definition that includes unloaded firearms within "deadly weapon") would make the word "loaded" surplusage. The Arkansas Supreme Court applies the canon against surplusage and the rule of lenity for criminal statutes (Trice v. City of Pine Bluff; Hales v. State).

Void-for-vagueness backstop

Even if a court somehow rejected the surplusage analysis, the AG argued the Capitol Police reading raised serious vagueness concerns. State v. Torres requires a criminal statute to give "fair warning in definite language of the prohibited act." A person of average intelligence reading "loaded firearm or other deadly weapon" would not have fair warning that "deadly weapon" was being used to cover unloaded firearms when "loaded firearm" was named separately. Higgins v. State upheld the "deadly weapon" definition in isolation, but here the term is paired with "loaded firearm" and the pairing creates the ambiguity. Because the Court will construe a statute to avoid constitutional problems where possible, the AG read "other deadly weapon" as covering only non-firearms.

The Capitol Police still has wide authority

The opinion went out of its way to remind the Secretary of State that nothing in its analysis stripped the Capitol Police of practical control over the grounds. Ark. Code Ann. § 12-14-102 gives the Capitol Police authority to "protect" the grounds and to "exclude and eject persons from and prevent trespass upon and in all of the State Capitol grounds." That authority is independent of § 5-73-122 and is limited only by limitations the Secretary of State imposes or by specific statutes allowing firearms for specific events. If the Capitol Police orders someone to leave the grounds and the person refuses, the person can be arrested for criminal trespass under Ark. Code Ann. §§ 5-39-101 and 5-39-203.

An officer also retains stop-and-detain authority under Ark. R. Crim. P. 3.1 to investigate whether conduct is lawful under § 5-73-122(a)(1). Whether reasonable suspicion exists for a stop turns on the factors in Ark. Code Ann. § 16-81-203: the demeanor and gait of the suspect, what the person is carrying, the area, third-party information, and whether the suspect appears to be avoiding identification.

What the other questions asked

The Secretary of State's questions 2 through 5 addressed (2) whether other police departments with concurrent jurisdiction could rely on the Capitol Police's interpretation, (3) and (4) whether the "deadly weapon" definition rendered the statute constitutionally adequate, and (5) whether the legislature should clarify the statute in light of Act 746 of 2013 and Opinion 2015-064. The AG handled (2) by deferring to each department's own legal advisor, (3) and (4) by referring to her analysis under question 1, and (5) by saying the need for clarification was ultimately up to the legislature.

Common questions

Can the Capitol Police prohibit firearms in the Capitol Building?
Yes. The opinion is explicit that § 5-73-122(a)(2) bars firearms in the State Capitol Building and the Justice Building "whether loaded or unloaded." The Capitol Police can arrest anyone carrying or possessing a firearm inside those buildings.

What about loaded firearms on the Capitol grounds?
Still illegal under § 5-73-122(a)(1). The opinion only addressed the unloaded-firearm question. Loaded firearms remain a Class A misdemeanor on the grounds for anyone other than law enforcement officers, certain security guards, and military personnel.

Could a future legislature change this result?
Yes. The AG explicitly identified the textual ambiguity and invited the legislature to clarify. Any change would have to come through amendment to § 5-73-122 (or its successor statute), not through the AG's office or the Capitol Police.

Did this opinion settle the question for courts?
AG opinions are persuasive but not binding. The opinion expressly says the question would be one of first impression for the courts. The Capitol Police could decline to follow it, but the AG made clear she believed an arrest under § 5-73-122(a)(1) for carrying an unloaded firearm on the Capitol grounds would not stand.

Source

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

Original opinion text

Opinion No. 2015-113
February 8, 2016
The Honorable Mark Martin
Secretary of State
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas State Capitol, Room 256
Little Rock, AR 72201
Dear Mr. Martin:
This is in response to your request for my opinion on the following questions concerning Ark. Code Ann. § 5-73-122, as it relates to the carrying of a firearm on State Capitol grounds:

1. Does the State Capitol Police Department need to change its interpretation of Ark. Code Ann. § 5-73-122(a)(1), or can the State Capitol Police Department continue to rely upon its operative interpretation that Ark. Code Ann. § 5-73-122(a)(1) prohibits the carrying of any firearm on the State Capitol Grounds, irrespective of whether the firearm is loaded or unloaded, unless an explicit statutory exception applies?
2. Can other police departments, exercising concurrent jurisdiction over the State Capitol grounds, rely upon the State Capitol Police Department's interpretation that Ark. Code Ann. § 5-73-122(a)(1) prohibits the carrying of firearms on the State Capitol Grounds, irrespective of whether the firearm is loaded or unloaded, unless an explicit statutory exception applies; or do the other police departments need to obtain an independent opinion from their counsel?
3. Is the statutory definition of the term "deadly weapon," [as] set forth [in] Ark. Code Ann. § 5-1-102, constitutionally adequate to make the statute, Ark. Code Ann. § 5-73-122(a)(1), sufficiently definite for purposes of criminal enforcement?
4. Does the use of the term "loaded firearm" in the statutory section, Ark. Code Ann. § 5-73-122(a)(1), render ambiguous the use of the term "deadly weapon" in that same statutory section, in any way?
5. Is there any need for legislative clarification of these issues in light of the enactment of Act 746 of 2013 and your Opinion No. 2015-064, dated on or about August 28, 2015?

INTRODUCTION AND SUMMARY

It is illegal to "knowingly carry or possess a firearm, whether loaded or unloaded, in the State Capitol Building or the Justice Building in Little Rock." Ark. Code Ann. § 5-73-122(a)(2) (Supp. 2015). State Capitol Police can certainly rely on Ark. Code Ann. § 5-73-122(a)(2) to prohibit the carrying or possession of a firearm, whether loaded or unloaded, in the State Capitol Building. Any person carrying or possessing a firearm, whether loaded or unloaded in the State Capitol Building, is subject to arrest.

Your question, however, is not about the State Capitol building. Rather, your question concerns the State Capitol grounds outside the building. The relevant criminal prohibition for State Capitol grounds is worded very differently from the criminal prohibition for the State Capitol Building. Subsection (a)(1) of section 5-73-122 makes it a Class A misdemeanor for any person to carry or possess a "loaded firearm or other deadly weapon" on the State Capitol grounds. In my opinion, the language used by the legislature makes clear that the statute does not criminalize carrying or possessing an unloaded firearm on the State Capitol grounds. Accordingly, I do not believe that the State Capitol Police Department can rely on Ark. Code Ann. § 5-73-122(a)(1) to arrest persons carrying or possessing an unloaded weapon on State Capitol grounds.

There are several caveats to this opinion. First, notwithstanding the foregoing, the State Capitol Police has broad statutory authority to maintain order on the Capitol grounds and exclude and eject persons from the grounds. "Except to the extent otherwise limited by the Secretary of State," the Capitol Police, in addition to having arrest authority, is charged with protecting the State Capitol grounds and preserving and maintaining order and decorum on the grounds. Ark. Code Ann. § 12-14-102(a) (Repl. 2009). In this regard, the Capitol Police is authorized to "[e]xclude and eject persons from and prevent trespass upon and in all of the State Capitol grounds ...." Ark. Code Ann. § 12-14-102(a)(4).

Based on this broad grant of authority, the State Capitol Police may choose to exclude from the Capitol grounds firearms and/or persons carrying firearms, whether the firearm is loaded or unloaded. If the Capitol Police lawfully orders a person to stay off the Capitol grounds or to leave the grounds, defiance of that order could result in arrest for criminal trespass. The State Capitol Police's decision to exclude firearms or persons carrying or possessing firearms from the Capitol grounds is subject to only two types of limitations: (1) limitations imposed on the State Capitol Police by the Secretary of State, and (2) limitations imposed by other provisions allowing firearms on the State Capitol grounds for certain limited events or activities.

Second, any person who carries a firearm should be aware that a law enforcement officer might lawfully inquire into that person's purpose. Determining culpability or potential culpability under section 5-73-122(a)(1) (making it illegal to carry or possess a "loaded firearm or other deadly weapon" on the State Capitol grounds) is initially a matter for law enforcement following guidelines that routinely apply when investigating a criminal offense involving the danger of forcible injury to persons. A law enforcement officer may stop and detain any person reasonably suspected of violating section 5-73-122(a)(1) 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: the demeanor of the suspect; the gait and manner of the suspect; whether the suspect is carrying anything, and what he or she is carrying; the particular streets and areas involved; any information received from third parties; and the apparent effort of the suspect to avoid identification or confrontation by a law enforcement officer.

Third, this opinion only addresses the question whether it is illegal under Ark. Code Ann. § 5-73-122 to carry an unloaded firearm on the State Capitol grounds. I therefore do not address whether the conduct in question might be unlawful under some other statute not brought to my attention.

QUESTIONS AND DETAILED RESPONSES

Question 1 - With certain exceptions, Ark. Code Ann. § 5-73-122(a)(1) makes it unlawful for any person to carry a "loaded firearm or other deadly weapon" on the State Capitol grounds (among other locations): "Except as provided in § 5-73-322 and § 5-73-306(5), it is unlawful for any person other than a law enforcement officer or a security guard in the employ of the state or an agency of the state, or any city or county, or any state or federal military personnel, to knowingly carry or possess a loaded firearm or other deadly weapon in any publicly owned building or facility or on the State Capitol grounds." The terms "firearm" and "deadly weapon" are not defined in section 5-73-122, but they are defined by the Criminal Code, which defines "deadly weapon" to include "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury," and defines "firearm" to include even a device "that is not loaded or lacks a clip or another component to render it immediately operable."

As defined above, therefore, the term "deadly weapon" includes "a firearm," and "firearm" includes "[a] device ... that is not loaded." You indicate that this has led the Capitol Police to interpret subsection 5-73-122(a)(1)'s prohibition against a "loaded firearm or other deadly weapon" to include unloaded firearms as part of the "deadly weapon" definition.

In my opinion, this reading of the statute is incorrect because it ignores the term "loaded firearm" in the phrase "loaded firearm or other deadly weapon." If the legislature intended for "other deadly weapon" here to include any firearm (because of the "deadly weapon" definition), there would have been no reason to refer to "loaded firearm." Indeed, doing so would have been redundant. A common rule of statutory construction is to give effect to each word of a statute, so that no language is reduced to surplusage.

The better reading is that "other deadly weapon" refers to non-firearms, and thus the overall prohibition against carrying or possessing a "loaded firearm or other deadly weapon" does not reach unloaded firearms.

This latter understanding of the statute is buttressed by another subsection of section 5-73-122. Subsection 5-73-122(a)(2) prohibits carrying a firearm, "whether loaded or unloaded," in the Capitol Building or Justice Building. This shows that when the legislature intended to include "unloaded" firearms in a similar criminal prohibition, it knew how to do so and made its intent very clear in the language of the relevant subsection. The absence of the word "unloaded" in section 5-73-122(a)(1) is striking when compared to its inclusion in section 5-73-122(a)(2). Its absence must have been intentional and cannot be ignored.

Section 5-73-122 is a criminal statute. The Arkansas Supreme Court adheres to the rule that criminal laws are "subject to strict guidelines of interpretation." As stated in Trice: "The rule for enforcement by criminal action is markedly different [from the rule in civil actions] because there can be neither constructively created criminal offenses nor criminal offenses established by implication. [Laws] creating criminal offenses must be clear and unambiguous." Criminal statutes are therefore "strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed." Especially in light of the strict construction and lenity requirements, it is my opinion that the Arkansas Supreme Court would conclude that subsection 5-73-122(a)(1) does not criminalize carrying or possessing an unloaded firearm on the State Capitol grounds.

If the statute were to be interpreted to include a prohibition against unloaded firearms, there is a significant question as to whether it would run afoul of the Court's constitutional "rule against vagueness." The rule is based on constitutional due-process standards and provides that a criminal statute must give "fair warning" of the prohibited conduct. In Higgins, the defendant argued that the statute under which he was prosecuted was void for vagueness because of its use of the term "deadly weapon." The Court rejected the argument, holding that the statute "conveys fair and sufficient warning" of what is meant by "deadly weapon" because the term is defined in the Criminal Code.

It thus seems that the meaning of "deadly weapon" in isolation is sufficiently clear based on the Criminal Code definition. And if the term "deadly weapon" has been used in isolation, its definition would plainly include both loaded and unloaded firearms. But in this statute, the term "deadly weapon" is used together with the term "loaded firearm" (the operative phrase in subsection 5-73-122(a)(1) prohibiting possession or the carrying of a "loaded firearm or other deadly weapon"). In such circumstances, there is a very strong argument that a person of average intelligence would not have fair warning that the statute criminalized possession of unloaded firearms in addition to the expressly identified loaded firearms. At the very least, a person of average intelligence would have to guess at the statute's meaning.

The Court will construe the statute as constitutional, if it is possible to do so. Construing the statute to prohibit the carrying of any firearm on the Capitol grounds, whether loaded or unloaded, could give rise to the claim that the defendant did not have "fair warning" that carrying an unloaded firearm was prohibited. The constitutional issue is avoided, however, if "other deadly weapon" is interpreted to refer only to non-firearms.

Because this would be a case of first impression, I cannot definitively opine on the question whether the Capitol Police must change its interpretation. But in my opinion, the Capitol Police should not rely on this statute to arrest persons carrying unloaded firearms on the Capitol Grounds.

Notwithstanding the foregoing, the State Capitol Police has broad statutory authority to maintain order on the Capitol grounds and exclude and eject persons from the grounds. Based on this broad grant of authority, the State Capitol Police may choose to exclude from the Capitol grounds firearms and/or persons carrying firearms, whether the firearm is loaded or unloaded. If the Capitol Police orders a person to stay off the Capitol grounds or to leave the grounds, defiance of that order could result in arrest for criminal trespass. The State Capitol Police's decision to exclude firearms or persons carrying or possessing firearms from the Capitol grounds is subject to only two types of limitations: (1) limitations imposed on the State Capitol Police by the Secretary of State, and (2) limitations imposed by other provisions allowing firearms on the State Capitol grounds for certain limited events or activities.

Additionally, any person who carries a firearm should also be aware that a law enforcement officer might lawfully inquire into that person's purpose. A law enforcement officer may stop and detain any person reasonably suspected of violating section 5-73-122(a)(1) if necessary to identify the person or determine the lawfulness of his or her conduct.

Question 2 - I cannot provide an opinion or advice in response to this question. The decision whether to rely upon the State Capitol Police's interpretation is a matter to be addressed by each law enforcement agency with the counsel of its own legal advisor.

Question 3 - I take this question to be asking whether Ark. Code Ann. § 5-73-122(a)(1) would survive a due-process challenge on the ground of vagueness if it is interpreted to prohibit the carrying of any firearm on the State Capitol grounds, whether loaded or unloaded. This matter is discussed above in response to Question 1.

Question 4 - See response to Question 1 above.

Question 5 - As stated above, I believe the language used by the legislature makes clear that Ark. Code Ann. § 5-73-122(a)(1) does not criminalize carrying or possessing an unloaded firearm on the State Capitol grounds. The question whether this is a matter requiring clarification is ultimately one for the legislature.

Sincerely,
LESLIE RUTLEDGE
Attorney General