A "constitutional carry" demonstration walk is planned for December 21 in downtown Conway.
According to Gary Epperson with the group Patriots of Act 746 (the act that amended A.C.A. § 5-73-120 and that many believe legalized "open carry" in Arkansas), the walk is scheduled to begin at 11 a.m. with a safety briefing. An early plan called for the demonstration to begin in Simon Park. However, organizers were advised by city officials on Tuesday afternoon that carrying weapons in Simon Park would violate the state law prohibiting weapons in municipally owned or maintained parks (A.C.A. § 5-73-122 (a)(1-4). Epperson wrote in a Facebook.com post to a group of constitutional carry supporters that a different location would be decided on.
Being seen peaceably associating in public with visible, holstered handguns is a goal of these demonstrations.
20th Judicial District Prosecutor Cody Hiland said last week that his office won't prosecute people for carrying a handgun absent any other illegality, and Faulkner County Sheriff Andy Shock said that his office defers to Hiland's judgment on the issue.
Conway Chief of Police A.J. Gary acknowledged confusion in interpretating the amended statute on Friday and said that his officers wouldn't interfere with a peaceful "open carry" demonstration and would treat it like any other demonstration.
Epperson also said in a Facebook.com post that demonstrators are asked not to carry rifles or shotguns in the demonstration.
Hiland stated his position on the amended law in a letter last week to local law enforcement officials, saying that while "it goes without saying that an unprovoked, offensive use of a weapon against a person is both wrong and criminal," a necessary use of a weapon for the defense of one's self or another "can be both right and lawful" under Arkansas' self-defense statutes (A.C.A. §§ 5-606 and 607).
The inclusion of the word "unlawfully" in the carrying a weapon statute, in Hiland's reading of the amended law, "has the effect of decriminalizing the carry of lawful weapons, including handguns, by citizens not otherwise prohibited from possessing them . . . so long as the citizen in question does not carry his or her weapon with the purpose of attempting to use it unlawfully against a person," his letter states, and so "it is now necessary that law enforcement officers make every effort to determine a person's purpose for carrying an otherwise legal weapon."
If an officer finds credible evidence that a person is carrying a weapon for an unlawful purpose or in a place where weapons are prohibited by law and arrests that person, the letter concludes, "this office will review each matter on a case by case basis by evaluating the facts of the case in light of the law as it exists."
Felecia Epps, associate dean and criminal law professor with the Bowen School of Law in Little Rock, said that ambiguity in the law can be cured by an Arkansas Court of Appeals decision or a clarification of the language by the Arkansas Legislature.
"A court is always trying to get at the legislature’s intent," Epps said. "To me the better fix [than an appellate court decision] is to make the legislature’s intent clear in the wording of the law, but either one would work. The problem with getting an appellate court [to clarify the state of the law] . . . is that you’d have to have a prosecution, then you’ve got to have a conviction and then you’d have to have an appeal [and decision in favor of overturning the conviction.]" If there’s not going to be prosecution, there’s not going to be judicial clarification, Epps said.
"[Arkansas Attorney General Dustin McDaniel] has given an interpretation of this law," Epps also said, "and it appears that in some counties that interpretation is not being accepted. To me, because the AG’s given an interpretation, his interpretation is supposed to be binding but people can have differing interpretations, and the general rule in criminal law is that if a law is ambiguous, then the person being charged with violating the law will be given the benefit of that ambiguity."