Arkansas Gun Law Update: AG opinion 2018-002

[Spats McGee]

Frankly, Arkansas carry laws have been a bit murky these past few years. We have a statutory scheme for concealed carry, and have had since ~1995. It had a couple of bugs, but generally worked until about 2015, when the General Assembly inserted "with a purpose to attempt to unlawfully employ the handgun, knife, or club" into our "Carrying a Weapon" statute. It now reads as follows, and I've underlined the language added in 2015

(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)

As one might imagine, there was a sizeable hubbub in 2015, with a lot of people claiming that open carry was now legal, that AR is a constitutional carry state. So our attorney general (I think it was Dustin McDaniel at the time) released an opinion on the matter. In my not-so-humble opinion, that opinion was a hastily-cobbled-together piece of garbage thrown together in a panic to prevent OC and the "inevitable" blood running in the streets. Subsequently, McDaniel was voted out and the new AG (Leslie Rutledge) released a new opinion, reversing McDaniel's. That Opinion was #2015-064. I was unable to upload either of the opinions at issue here at TFL, but AR AG opinions can all be found here. The gist of that opinion was "Well, open carry or concealed carry without a license might not really be il-legal, but if you do it, don't be surprised if the police want to talk to you."

On June 20, 2018, AG Rutledge released Opinion 2018-002. In this opinion, Ms. Rutledge almost begs the General Assembly to clean up our concealed carry statutes. (I don't blame her, either. They're a mess.) She opines that there is no penalty for carrying a concealed handgun without a CHCL in AR. However, she also notes the existence of a possible presumption that carrying a concealed firearm without a license indicates intent to use it unlawfully against a person, in violation of our Carrying a Weapon statute.

 

[Aguila Blanca]

She opines that there is no penalty for carrying a concealed handgun without a CHCL in AR. However, she also notes the existence of a possible presumption that carrying a concealed firearm without a license indicates intent to use it unlawfully against a person, in violation of our Carrying a Weapon statute.

Yepp - clear as mud.

 

[flyer898]

In my experience, in California, while AG opinions are accorded respect by the courts, they are not binding. I have a read great many published (binding precedent) opinions where the the court’s decision was contrary to the AG’s opinion. I am not licensed to practice in Arkansas, and I do not know how much weight is accorded AG opinions by the courts there.

 

[Spats McGee]

In my experience, in California, while AG opinions are accorded respect by the courts, they are not binding. I have a read great many published (binding precedent) opinions where the the court’s decision was contrary to the AG’s opinion. I am not licensed to practice in Arkansas, and I do not know how much weight is accorded AG opinions by the courts there.

They're persuasive, but not binding.

 

[Aguila Blanca]

They're persuasive, but not binding.

How effective would they be as an affirmative defense if someone were arrested and charged, and based his/her defense on having acted in accordance with an AG's opinion?

 

[Spats McGee]

How effective would they be as an affirmative defense if someone were arrested and charged, and based his/her defense on having acted in accordance with an AG's opinion?

While I'd certainly want that "arrow in my quiver" for legal defense, in case I needed it, that's a tough question to answer. There really is no "but the AG said it was OK" defense. With that in mind, I'll give you some of my thoughts on it, in no particular order.

• As noted, AG opinions are persuasive, but not binding.
• Case law from other states or circuits is also persuasive but not binding.
• You'd need to look very closely at the nexus between: (a) the question asked by the requestor of the opinion; and (b) your own case. Is the AG opinion really on point?
• If you have nothing but the AG opinion to rely on, there's a risk that your judge will say "So what you're telling me is that there's no case law on your side?"
• If it was favorable to me, I'd use it. Wouldn't be the first time I've used an AG opinion, won't be the last.

 

[ATN082268]

While I'd certainly want that "arrow in my quiver" for legal defense, in case I needed it, that's a tough question to answer. There really is no "but the AG said it was OK" defense. With that in mind, I'll give you some of my thoughts on it, in no particular order.

• As noted, AG opinions are persuasive, but not binding.
• Case law from other states or circuits is also persuasive but not binding.
• You'd need to look very closely at the nexus between: (a) the question asked by the requestor of the opinion; and (b) your own case. Is the AG opinion really on point?
• If you have nothing but the AG opinion to rely on, there's a risk that your judge will say "So what you're telling me is that there's no case law on your side?"
• If it was favorable to me, I'd use it. Wouldn't be the first time I've used an AG opinion, won't be the last.

In general, how persuasive to the court are the opinions, voiced at the time of the passage of a law, of those politicians who passed the law in the first place?

 

[Aguila Blanca]

In general, how persuasive to the court are the opinions, voiced at the time of the passage of a law, of those politicians who passed the law in the first place?

Ah, yes ... the proverbial "legislative intent."

Good question.

 

[turkeestalker]

Folks wound up in Cherokee Pass and I've made several trips down to visit believing that AR honored MO CCWs... Y'all er makin me nervous.

 

[Spats McGee]

Folks wound up in Cherokee Pass and I've made several trips down to visit believing that AR honored MO CCWs... Y'all er makin me nervous.

No need to worry about that. This AG opinion revolves around concealed carry without a CHCL, but if you have a CHCL, CCP, CCL, or whatever it's called in your state, from any state, Arkansas honors it.

Effective August 16, 2013, the State of Arkansas acknowledges all concealed handgun carry licenses lawfully issued by another state.

Source: https://asp.arkansas.gov/services-and-programs/detail/concealed-handgun-licensing

 

[turkeestalker]

Village... Cherokee Village, sorry.
Thank you Spats.