Prosecuting Attorney adds another legal opinion to ‘Open Carry’ issue

by The City Wire staff ([email protected]) 780 views 

A recent letter from Sebastian County Prosecuting Attorney Dan Shue to state and local law enforcement leaders adds another legal opinion to the controversial “Open Carry” law that emerged from the 2013 Arkansas Legislative Session. And it’s an opinion appreciated by at least one former leader of a group that pushed for the law.

Act 746 signed into law in 2013 modified existing law to read: “(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.”

Key language in the new law was “attempt to unlawfully employ” the weapon. Shortly after the law was signed, then Attorney General Dustin McDaniel said the new law did not allow for an individual to do more than possess a handgun within that person's personal transportation when on a journey outside of the person's residential county.

“In offering this conclusion, I must stress that Act 746 in no way modifies the rights and obligations conferred upon those individuals who have obtained a concealed handgun permit pursuant to the pertinent provisions of the Arkansas Code.”

University of Arkansas Associate Professor of Law Laurent Sacharoff and law student Jacob Worlow issued a report in early 2014 that said the law does allow for anyone to openly carry a weapon without a concealed carry permit. While suggesting that the Legislature made a mistake with the permissive language, the authors said "since practically anyone can reasonably say they intend to use the gun for self-defense, that would mean nearly anyone can carry a gun without a permit, open or concealed."

Sacharoff and Worlow said it is possible the law will face judicial scrutiny, largely based on questions of legislative intent and also the history of similar laws in the state.

Responding to law enforcement requests for clarity on the law, Shue wrote in his June 23 letter that the law is essentially “a return to the state of the law in 1975 after the passage of Act 696 of 1975.” Continuing, Shue said the law approved in 2013 says possession of a weapon is not enough of a reason for law enforcement to make an arrest.

“Mere possession of the handgun, knife, or club is no longer enough. When there is no evidence of a ‘purpose to attempt to unlawfully employ’ the weapon, then there has been no crime committed, and no criminal prosecution can be undertaken. Hopefully this will assist you in your efforts to enforce the law,” Shue noted.

The letter was sent to numerous state and regional law enforcement officers, including Capt. Bryan Davis with the Arkansas State Police; Sebastian County Sheriff Bill Hollenbeck; Fort Smith Police Chief Kevin Lindsey; and Greenwood Police Chief William Dawson.

Fort Smith resident Steve Jones, a former Board Chairman of Arkansas Carry, has organized several successful “open carry walks” around the state since 2013 to challenge McDaniel’s interpretation of the law. He sent this comment to The City Wire after reviewing Shue’s letter.

"Prosecuting Attorney Daniel Shue, with this memo, has cleared up any confusion caused by then-AG Dustin McDaniel's disastrous July, 2013 official opinion.  In an effort to give anti-gun legislators cover for voting for Act 746, McDaniel issued an awful opinion that put all Arkansas law enforcement agencies in danger of costly lawsuits and bad arrests of law-abiding citizens, while pitting these same citizens against the police.  Sebastian and Crawford Counties are very lucky to have public servants such as Daniel Shue and Marc McCune."

Link here for a PDF copy of Shue's letter.