Arkansas: Taff v. State

[Spats McGee]

Arkansas has a statute on the crime of "Carrying a Weapon." Ark. Code Ann. 5-73-120. For the longest time, that statute said something pretty close to "(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." (It's early and I don't feel like doing historical legal research on only 1 cup of coffee.)

In 2013, our General Assembly enacted Act 746. That changed the statute to say "(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."

Ark. Code Ann. § 5-73-120 (West)

I've underlined the language that was added. There was quite the hubbub here in Arkansas with a bunch of folks claiming that we'd gone constitutional carry. I was very cautious about that, because I didn't really need one of my friends going to jail while screaming "My buddy Spats said we're constitutional carry! Ah know mah rahts!!!"

Yesterday, the Arkansas Court of Appeals issued Taff v. State, which was an appeal from a conditional guilty plea. The trial court had denied Mr. Taff's motion to suppress, but the Court of Appeals reversed. Mr. Taff had been seen going in and out of a store several times, possibly with a gun. The store owner called it in, and the police went to check it out. The officer activated his blue lights when he saw Mr. Taff walking down the highway, turned around, and made contact with Taff. In the end, the court ruled that it was an illegal seizure and suppressed the evidence. For TFL purposes, here's the important part:

The State argued that Officer Davis seized Taff because he “had to determine the lawfulness of [Taff’s] conduct going in and out of the store and carrying that weapon and acting suspiciously.” Merely possessing a weapon is not a crime in the State of Arkansas. See Ark. Code Ann. § 5-73-120(a) (providing that “[a] person commits the offense of carrying a weapon if he or she possesses a handgun ... on or about his person ... with a purpose to attempt to unlawfully employ the handgun ... as a weapon against a person”); see also Op. Ark. Att’y No. 064 (2015) (“n general merely possessing a handgun on your person ... does not violate § 5-73-120(a) and may be done if it does not violate other laws or regulations.”). Under the clear language of section 5-73-120(a), the possessor of a handgun must have an unlawful intent to employ it as a weapon against a person in order to make that possession a criminal act. Under the rule of lenity, any doubts as to the interpretation of a criminal statute are resolved in favor of the defendant. See Williams v. State, 364 Ark. 203, 208, 217 S.W.3d 817, 819–20 (2005).

There is nothing in the record before us to indicate that Taff demonstrated any sort of unlawful intent with the weapon prior to the engagement of the blue lights—such as threatening someone at the store or brandishing the weapon—that would have given officers reasonable suspicion of a crime sufficient to effectuate the stop with the blue lights. To the contrary, Officer Davis’s testimony was clear that there were no indicators of unlawful activity or intent and that he had no information that would have indicated Taff’s possession of a gun was unlawful.

Taff v. State, 2018 Ark. App. 488

Y'all, I believe Arkansas really is permitless carry now.

 

[zukiphile]

That's an excellent, succinct and clear summary.

This part caught my eye.

To the contrary, Officer Davis’s testimony was clear that there were no indicators of unlawful activity or intent and that he had no information that would have indicated Taff’s possession of a gun was unlawful.

It's common enough in my part of the country for PO's to fabricate testimony about a basis for RS that I think Davis should be lauded for his candor. Arkansas will really impress me if Taff gets his firearm back undamaged.

Is the result here the same as constitutional carry? If a PO discerns an unlawful purpose even where no unlawful behavior has occurred, isn't a person still culpable for carry an arm under the code?

Of course, legal permitless carry unless a PO testifies as to an illicit purpose is a huge step forward. This sounds like it may leave a prosecutor with a redundant charge he can bargain away in the event someone actually employs an arm in a crime.

If you and I have a disagreement, and I know you carry, will my testimony that you meant to engage in menacing support a conviction for menacing and the unlawful purpose of carrying a firearm while you engaged in the unlawful conduct?

 

[Spats McGee]

Is the result here the same as constitutional carry?

I think so. My understanding of constitutional carry is simply that carry, open or concealed, without a gov't permit, is allowed. I don't understand it to mean that carrying to an ex-wife's house with murder on my mind can't be criminalized. As it stands in Arkansas, after this decision, and in conjunction with AG Opinion 2018-2 (I think it was), carrying without a CHCL is clearly not a crime.

If a PO discerns an unlawful purpose even where no unlawful behavior has occurred, isn't a person still culpable for carry an arm under the code?

Yes. Carrying "with intent" to unlawfully use the handgun against a person is still illegal. Proving that intent is the hard part.

Of course, legal permitless carry unless a PO testifies as to an illicit purpose is a huge step forward. This sounds like it may leave a prosecutor with a redundant charge he can bargain away in the event someone actually employs an arm in a crime.

Agreed.

If you and I have a disagreement, and I know you carry, will my testimony that you meant to engage in menacing support a conviction for menacing and the unlawful purpose of carrying a firearm while you engaged in the unlawful conduct?

Solely your testimony? I guess it depends on how bitter the disagreement is, what I say during the dispute, and a few other circumstances. If I say that "I'm gonna pop you," and I'm pulled over 10 minutes later with a gun in the car, probably. OTOH, if we have a relatively minor dispute, I don't say that, and I'm pulled over the next day, probably not.

 

[hnusz]

Does this mean that they also honor states permit less carry?

 

[Spats McGee]

First of all, please read the caveat in my sig line.

More or less, yes. In a perhaps hyper-technical sense, it's not so much about an out-of-state permit. What this really did was settle the argument over "whether concealed carry without a permit is a crime." The Court of Appeals says that it is not. The statute on Carrying a Weapon (Ark. Code Ann. § 5-73-120) makes reference to a "person" engaged in certain conduct. Not "a resident of Arkansas," or "of another state." So it applies the same to everyone. By my reading, someone passing through Arkansas, if someone is legally permitted to possess a handgun, he or she may lawfully carry the same, either openly or concealed.

 

[KyJim]

My understanding of constitutional carry is simply that carry, open or concealed, without a gov't permit, is allowed.

If a statute gives or takes away the right to carry, then it is not "constitutional carry." The right has to be enumerated within the state's constitution. For example, Section 1 of the Kentucky Constitution states:

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

That's constitutional carry (open carry).

 

[Spats McGee]

Thanks, KyJim. I guess I've been misuing the term, and will correct my OP.

 

[Aguila Blanca]

Ohio is a good example of KyJim's point. Until a few years ago, Ohio didn't have provision for concealed carry permits. (At least, this is the way I remember it going down.) But the Ohio state constitution has a provision protecting the right to bear arms.

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. Art. I, § 4

Somewhere along the way, IIRC, a judge ruled that inasmuch as there was a constitutional right to bear arms, if the legislature chose not to allow concealed carry then as a matter of constitutional law, open carry must be allowed. So the pro-gun activists began organizing carry-ins around the state. The predictable results was enough people becoming unglued at the sight of scary GUNZ! that the legislature relented and enacted a concealed carry law and permit scheme.

Of course, my state's constitution has a similar provision, but I won't hold my breath waiting for a judge here to rule that permitless open carry is legal.

FYI: http://www2.law.ucla.edu/volokh/beararms/statecon.htm

 

[Spats McGee]

Well, then, I guess I'll be asking questions in the legal forum today. And about my own state, no less!

Arkansas has always had a provision for the bearing of arms, well, at least since 1874:

The citizens of this State shall have the right to keep and bear arms, for their common defense.

Ark. Const. art. II, § 5. I'm not in love with the phrasing, but they didn't let me write it. It is what it is.

5-73-120 (Carrying a Weapon) was first enacted in 1975, and we got our concealed carry law in 1995. Our statutes have never actually said "No person shall carry a firearm concealed on his or her person unless he or she has a CHCL." This year, our AG confirmed that there is in fact no penalty for carrying a handgun concealed without a license. So anyone caught carrying concealed without a license was prosecuted under 5-73-120. The Taff case makes no mention of a CHCL*, and says def was carrying a pistol in his waistband, IIRC. Our Ct App says, "So? that's not a crime."

So where does that leave Arkansas? Are we constitutional carry? Or just permitless?

*=I know Bill James & Michael Kaiser, defendant's lawyers. They would have raised it if def had a CHCL.

 

[Aguila Blanca]

5-73-120 (Carrying a Weapon) was first enacted in 1975, and we got our concealed carry law in 1995. Our statutes have never actually said "No person shall carry a firearm concealed on his or her person unless he or she has a CHCL." This year, our AG confirmed that there is in fact no penalty for carrying a handgun concealed without a license. So anyone caught carrying concealed without a license was prosecuted under 5-73-120. The Taff case makes no mention of a CHCL*, and says def was carrying a pistol in his waistband, IIRC. Our Ct App says, "So? that's not a crime."

So where does that leave Arkansas? Are we constitutional carry? Or just permitless?

Spats, I am not an attorney (as I believe you already know), I have never attended law school, and I didn't stay at a Holiday Inn Express last night. That said, I have an interest in how state constitutions differ in the RKBA, so I have over the years looked at the various state 2A corollaries more than twice. I posted a link to a summary at the end of post #8, above.

My take is that, while many state constitutions purport to guarantee a right to bear arms, none state outright that the state may not regulate the mode of carry. That's what led to the case in Ohio that eventually resulted in a concealed carry law and permit structure. My understanding (I think from Al Norris) is that, many years before Ohio, something similar happened in Idaho. (Brickey, IIRC]

Those states whose constitutions guarantee (or purport to guarantee) a RKBA generally don't address the mode of carry (open vs. concealed). A few of them do; look at Colorado, for example:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

My take on this is that a state's constitution may "guarantee" a RKBA (mine does, but do NOT carry here without a permit!), but that leaves the legislature open to "regulate" the mode of carry unless the particular state's constitution doesn't specifically prohibit such regulation. Many states use the 'I' word ("infringe"), but it is misinterpreted in the states as much as it is in the U.S. Constitution. An honest linguist would have to acknowledge that any regulation is, by definition, an "infringement." But I'm not aware of any court, anywhere, that has ruled that to be the case.

Consequently, we have to face the fact that, at least in some states, "constitutional" carry may be limited to one OR the other mode of carry. In Colorado, the language of the constitution makes it plain that while carry is a constitutional right, concealed carry is not. In Ohio, the court ruled that "carry" was a protected right, but the mode of carry was not specified. The legislature had made concealed carry a crime, therefore (the court said) open carry was allowed as the only other way for a citizen to exercise the constitutional right.

Then look at Florida:

The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

Georgia:

The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

Your Arkansas constitutional language is similar to Ohio's (except that Ohio has a clause subordinating the military to the civil authority). The operative part of Ohio's RKBA says:

The people have the right to bear arms for their defense and security;

That basically says the same thing that Arkansas's constitution says. In Ohio a judge said the legislature could regulate the mode of carry, but not entirely prohibit carry. Based on the constitutional language, it would appear that a judge in Arkansas could arrive at the same conclusion. And, in response, the legislature could turn around and say that concealed carry is okay without a permit but that you need a permit to open carry. It could go either way.

TL;DR version: "Constitutional carry" does not automatically equate to permitless concealed carry. (IMHO) I think Arkansas is "permitless."

 

[zukiphile]

That basically says the same thing that Arkansas's constitution says. In Ohio a judge said the legislature could regulate the mode of carry, but not entirely prohibit carry. Based on the constitutional language, it would appear that a judge in Arkansas could arrive at the same conclusion. And, in response, the legislature could turn around and say that concealed carry is okay without a permit but that you need a permit to open carry. It could go either way.

I am reading the Arkansas code and the decision differently. The distinguishing feature of the development Spats describes is a general prohibition on carry being converted into a general prohibition on carry with a specific intent. In the absence of the intent, there doesn't appear to be a criminal penalty for a court to impose.

KYJim's point is interesting; if people carry, but not pursuant to a constitutional provision, they have a condition of statutory carry.

Ohio's history on this is queer. Yes there is a constitutional right. "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." Apparently this meant that the courts and legislature could do as they pleased.

Cleveland instituted an echo of the 94 AWB. A clever defendant objected that the law abridged his state RTKB. The Ohio Supreme Court upheld the ban with much the same reasoning the US Sup Ct rejected in Caetano -- not all weapons were banned, so prosecuting someone for carrying a weapon within a prohibited class was fine.

It's true that the OH Sup Ct when confronted with a de facto ban on all weapons carry held that open carry was protected under the OH Constitution. But what was "concealed carry" in Ohio? In some jurisdictions, it was carrying a weapon a PO couldn't see. People who openly carried in holsters were successfully prosecuted if the PO testified that he could not see the holstered weapon as he approached the defendant from the defendant's weak side.

The General Assembly did pass a concealed carry law, though a common pleas judge seated in Cleveland ruled that the state licenses did not prohibit the City from prosecuting people for concealed carry. She was reversed, but it illustrates a couple of cultural problems.

A person with an OH permit can carry concealed in OH, but it doesn't appear to spring from a constitutional right within the state.

 

[KyJim]

Spats, I know absolutely nothing about Arkansas law but I find the constitutional phrasing potentially subject to an interpretation that would allow carry only with a militia or similar organization. Perhaps there are decisions which say otherwise and that seems to be what your AG is saying.

I will add that my own state (Kentucky) used a rational basis analysis to review our state constitutional provision when it reviewed a criminal case that came out before McDonald and Heller. I complained about it on this forum because a rational basis test effectively strips out much of the protection our state constitution meant to provide. Unfortunately, the case came up on a bad set of facts --- a clear case of a convicted felon in possession of a firearm, contrary to an express criminal prohibition. The court could have come to the same conclusion using a more stringent test but didn't have the guidance McDonald and Heller could have provided.

 

[Spats McGee]

Spats, I know absolutely nothing about Arkansas law but I find the constitutional phrasing potentially subject to an interpretation that would allow carry only with a militia or similar organization. Perhaps there are decisions which say otherwise and that seems to be what your AG is saying. . . .

I have the same concern about our constitution, and I am unaware of any decisions that wound contravene such an interpretation.

 

[Aguila Blanca]

From the link I provided in post #8:

Arkansas: The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (enacted 1868, art. I, § 5).
1836: "That the free white men of this State shall have a right to keep and to bear arms for their common defence." Art. II, § 21.

[Self-defense right protected, Arkansas Game and Fish Com'n v. Murders, 327 Ark. 426 (1997); Wilson v. State, 33 Ark. 557 (1878).]

 

[rwilson452]

PA constitution

The PA constitution reads differently.


Article I, Section 21 of the Pennsylvania State Constitution states: "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."

It is my understanding that it was once considered to go into the bill of rights. Alas, it didn't get there.

 

[Metal god]

I have the same concern about our constitution, and I am unaware of any decisions that wound contravene such an interpretation.

I've thought about this in the past and always figured the "only militia or similar organization have the RKBA" to be a very weak argument for the anti's .

Wouldn't it be simple enough to just join a militia or similar organization . Better yet just organize one your self ??? Or is there some other legal aspect to a militia or similar organization that is regulated in such a way that not just anybody can start one them selves or join one that already exist ??

I remember having this conversation with some anti family members . When they tried to say the RKBA is only for militia's . I said fine , I'll join the CA militia . Now can I have all the firearms I want ??? They just looked at me funny for a second knowing they got cornered and said no and went on a rant of bla bla bla we don't need militias cus the National guard .

OK so what your saying is " We're not saying you can't swim , we're just draining the pool you can still swim if you want ???

 

[Aguila Blanca]

The parallel between Arkansas and Massachusetts is strong:

Arkansas:

The citizens of this State shall have the right to keep and bear arms for their common defense. Art. II, § 5 (enacted 1868, art. I, § 5)

Massachusetts:

The people have a right to keep and to bear arms for the common defence. ... Pt. 1, art. 17 (enacted 1780)

But, in that link I posted in post #8, note that in Massachusetts that language has been interpreted by the courts as providing/guaranteeing ONLY a collective RKBA, not an individual right. "Interpreted as collective right only, Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)." In Arkansas, it appears that the individual RKBA, whatever you chose to call it (constitutional carry, statutory carry, whatever), derives from common law rather than from the state's constitution.

Note the difference between these states and, for example, Pennsylvania, which stipulates a right the bear arms "in defense of themselves and the State."