This memo was sent a year ago by Crawford County Prosecuting Attorney Marc McCune to all law enforcement agencies in that county. He was also the president of the Arkansas Prosecuting Attorney Association at that time, and he sent a copy to all the prosecutors in the state. The memo reads: August 25th, 2013 Open Carry has made the news lately with the AGs opinion and also the demonstration in Fort Smith yesterday. A.C.A. 5-73-120 was amended in the 2013 legislative session. It now reads that 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. The AGs opinion (2013-047) mainly focuses on the journey provision, which was also changed in the 2013 session, to say that Arkansas is not an open carry state. I, along with several other elected PAs, do not agree with the AGs opinion. We believe that your mental state purpose to attempt to unlawfully employ will be the determining factor whether or not a persons open carry is illegal. For example, Saturdays open carry demonstration in Fort Smith, no one was arrested for simply openly possessing the firearm. If the persons mental state was with a purpose to attempt to unlawfully employ the handgun (i.e. threaten someone with the gun as an aggressor and not in self defense), then yes the person is in violation of the law. My suggestion is that if law enforcement encounters a situation with a person carrying a weapon that is visible, before arresting anyone, find out what their purpose is for carrying the weapon. If their purpose is merely that is their right and/or for self defense/protection, and not with any purpose to attempt to unlawfully employ the handgun, then do not arrest that person and seize his weapon. By arresting and seizing his weapon, that officer will be potentially placing himself, his agency and city/county in a position of a wrongful arrest lawsuit. This is merely my opinion as to the amendments to the existing law and suggestions as to how to handle these situations, if and when they arise. Each department will need to advise their officers on how they want these situations handled. My office will not be prosecuting these cases unless we can prove the mental state: for use with a purpose to attempt to unlawfully employ the handgun. This is a strong stance by a respected prosecutor, and should be used to convince our elected officials as to what the law really says.
Posted on: Sat, 30 Aug 2014 16:03:29 +0000
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