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 THR 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.

 

[Frank Ettin]

Well that does seem to be what the statute says. Some other courts might have resorted to some pretty convoluted reasoning to avoid that result.

So Spats, firing up your crystal ball --

• Is there any provision at the Arkansas Court of Appeals for a rehearing en banc?
  
  
• Is there any likelihood that this will go to the Arkansas Supreme Court?
  
  
• Do you think there might be sufficient political pressure for the legislature to "fix" this by amending the statute to "clarify" this?
  
  
• Or do you think this is really a done deal?

 

[Spats McGee]

Well that does seem to be what the statute says. Some other courts might have resorted to some pretty convoluted reasoning to avoid that result.

The language seems pretty straightforward, but we've had some AGs and police departments work pretty hard to avoid what I think is the natural reading of the language.

Is there any provision at the Arkansas Court of Appeals for a rehearing en banc?

Yes, there is. However, our current AG did a couple of things that lead me to believe that it may not be sought. Right after the enactment of Act 746, the prior AG issued an opinion that, to paraphrase, said that you still had to have a CHCL to carry concealed and that open carry was still prohibited. Even had I agreed with it, it was a sloppy opinion. Moreover, the mental gymnastics required to get where he wanted to go would have made Nadia Comaneci proud. As soon as Leslie Rutledge took office, she reversed that opinion. Second, her office issued an opinion earlier this year which was pretty clear in stating that concealed carry without a CHCL has no penalty attached. There are a couple of shaky items in that opinion (IMNSHO), but the end conclusion is sound.

Is there any likelihood that this will go to the Arkansas Supreme Court?

Possible but unlikely. Overall, our AG has been pretty friendly to gun owners, so I don't know that she'll try to take this further, particularly in light of the officer's testimony that he didn't have any information that Taff shouldn't have had the gun. In her shoes, I'd be worried about making bad law.

Our SC might take it, but I'm not entirely sure they would. It's a matter of first impression, but it's not a constitutional question, it's not particularly sexy. . . . And we have elected SC justices.

Do you think there might be sufficient political pressure for the legislature to "fix" this by amending the statute to "clarify" this?

If by "clarify," you mean "reset things so that a permit is required to carry," I'd call that doubtful. The population of Arkansas is around 3 million. The largest metro area we have (Little Rock/North Little Rock) is under 300k. We have a couple of other towns in the 60k range. I'd put ~2.5M living in towns of 30k or less. Everyone shoots something. We've had concealed carry since about 1995, and it's working pretty well. We have the occasional flurry of antigun sentiments, and the gov't of the City of Little Rock is doing its best to be antigun, but it's just not very good at it.

Or do you think this is really a done deal?

I think it's done.

 

[Frank Ettin]

Thanks, Spats. An excellent and thorough analysis.

 

[CapnMac]

My impression of Arkansas (Hot Springs notwithstanding) is that it was a place where a person least needed a CHL; which seems to go hand-in-hand with a 2A friendly population.

I believe I see why the code was amended in the way it was. Even as I believe I see why it might scan poorly for casual or lay readers. That being said, I do believe I will clip that language and forward it to my State Representative & Senator.

 

[Spats McGee]

My impression of Arkansas (Hot Springs notwithstanding) is that it was a place where a person least needed a CHL; which seems to go hand-in-hand with a 2A friendly population. . . .

That's mostly true. Unfortunately, we've had quite a bit of confusion in the carry situation in recent years.

 

[TRX]

I'm glad to see some progress on this, though it's not as cut-and-dried as I'd prefer.

So now we have a situation where my CHCL actually restricts my ability to carry, compared to someone without a license. [sigh]

Well, at least most other states recognize it. And as of the current election, I can once again use it as ID when voting. And the NICS thing.

 

[Spats McGee]

. . . .So now we have a situation where my CHCL actually restricts my ability to carry, compared to someone without a license. . . . .

In what way?

 

[gc70]

Rules 3.1 and 3.2 (Possession of license and Contact with law enforcement) require a licensee "in possession of a handgun" to carry the license and notify law enforcement and present the license on request for identification. The requirements related to a license would obviously not apply to a person without a license.