Last weekend, I was in the Ozarks camping, riding 4-wheelers, and flying my paramotor with my son. We didn’t have cell signal in most places. After a while I was able to find a spot to get signal. When I did, messages came streaming in from many members of the Arkansas Armory community telling me about a court case that had recently been decided at the Arkansas Court of Appeals, Jamie Taff v State of Arkansas, which held that open carry or concealed carry of a firearm without a license/permit in Arkansas isn’t a violation of Arkansas Code Annotated 5-73-120 “Carrying A Weapon”
I’ve spent some time this week digesting the ruling and talking it over with friends of mine in the legal community.
I’ve spent some time this week digesting the ruling and talking it over with friends of mine in the legal community.
I’m delighted to report that it looks like this case is indeed a strong legal argument in favor of the 2nd Amendment to the US Constitution and Article II Section 5 of the Arkansas Constitution - the right of our citizens to keep and bear arms! I’m incredibly happy with the court’s ruling, and I believe it is a very big step toward adding clarity to what is and isn’t permissible.
This decision, at the Court of Appeals level, means that the mere carrying of a firearm without illegal intent, absent any other facts, isn’t a violation of 5-73-120 Carrying a Weapon. That provides Arkansans with a tremendous defense against the state wishing to press charges against a citizen for simply carrying a firearm for their own protection. It also makes clear that law enforcement cannot detain a person for only carrying a firearm!
This is a win for citizens in our state!
So let's break down the ruling a little bit.
On April 4, 2017 the Montgomery County Sheriff’s Office received a call from an employee of a local store reporting that a man, later identified as Jamie Taff, was carrying a pistol in his waistband, acting suspiciously, and going in and out of the store several times. Two deputies responded to the call and one of the deputies ultimately encountered Taff walking down the highway towards the county line. As the deputy approached Taff, he activated his blue lights and pulled behind Taff. At the time this deputy activated the lights, Taff had not been observed breaking any laws - a fact that the deputy testified to in court.
At this point, Taff continued to walk a few steps, stopped, turned, faced the deputy, reached into his left pants pocket, and began to reach towards his right side (where his pistol was located). The deputy drew his service weapon, took Taff into custody, searched him, and located narcotics and the pistol on Taff.
I want to make this clear, Taff is no hero in my eyes. It appears that he was carrying drugs and a pistol, and may have been making motions to threaten the life of a fellow Law Enforcement Officer. I am grateful that no one (the officers, and Taff) were not injured in this encounter.
That said, there is a principle in law called “The fruit of the poisonous tree”. If the search violated Taff’s rights, then any of the contraband found on him has to be ignored by the court. Taff contended that the deputy didn’t have the right to search him, because merely carrying a weapon while walking down the side of a public road isn’t a crime. If the deputy couldn’t stop and search him, then anything he found must be ignored (the fruit of the poisonous tree).
The Arkansas Court of Appeals agreed with Taff. The law enforcement officers didn’t have the right to legally activate their blue lights and detain him at the time. They could have approached Taff and had a consensual conversation with him or simply could have followed him and observed his activities. However, at the moment the deputy activated his blue lights, no “reasonable suspicion” of a crime was present. Therefore, everything that happened after that must be ignored by the court.
In many ways, this is a bigger 4th Amendment case than it is a 2nd Amendment one, but the ruling makes several key statements.
The court affirms that “Merely possessing a weapon is not a crime in the State of Arkansas” under 5-73-120. It reminds that a person must be carrying “with a purpose to attempt to unlawfully employ the handgun . . . as a weapon against a person” to be found guilty of a violation of 5-73-120 and may be carried on a person so long as it “does not violate other laws or regulations.”. It makes clear that, “Under the rule of lenity, any doubts as to the interpretation of a criminal statute are resolved in favor of the defendant.” Moreover, Taff was walking in a direction leaving Montgomery County,.
This is great news! It means that the police can’t detain us simply for carrying a firearm, as long as we aren’t violating other laws or regulations.
That said, a violation of ACA 5-73-120 Carrying a Weapon, isn’t the only statute that we have to worry about. I am concerned about the traps and false sense of security that this ruling may create. I fear that this will cause many Arkansans to mistakenly believe that they can carry anywhere, at anytime. This isn’t the case.
We have the Federal Gun Free School Zones Act. This makes it a felony to be within 1000 feet of a school’s property with a firearm, unless certain exemptions are met. One of those exemptions is if the “individual possessing the firearm is licensed to do so by the State in which the school zone is located” That means the Arkansas CHCL exempts you from the federal Gun Free School Zones. So, if you want to legally be able to drop kids off at school with your pistol in the car, or even practically drive through most urban areas you will still need a CHCL.
Further, don’t forget about the wide array of federally prohibited places. Post offices, military installations, the social security administration, federal courthouses, the VA, and more are all places in Arkansas that are unaffected by this.
When we look at other Arkansas law, we can find a wide array of places that will remain illegal to carry without a license. Generally speaking A.C.A. 5-73-119 makes it illegal to carry on school and college property (or bus stops) without a license. A.C.A. 5-73-122 makes it illegal to carry into “publicly owned buildings and facilities” including public offices, parks, sports fields, and other public recreational structures and properties) without the Enhanced License. Of course it will remain illegal to carry in other obvious places like courthouses. Carry into places licensed for alcohol consumption on the premises is illegal without an Enhanced license (or a restaurant with a regular CHCL).
The regular CHCL allows you to carry into a private employer parking lot. Carrying to a place that has a “no weapons” policy could subject you to criminal trespass charges if you don’t have a license. Also, remember that a license is likely required by other states you may be traveling to beyond Arkansas.
This isn’t a comprehensive list of all the places where carry will remain prohibited without a license. If you choose to carry without one, you are signing up to know all the intricacies. The legislature has a lot of work to do if they want to make carry easier.
I think it’s also important to note that the court said that the officers could have handled the situation differently. Carrying openly will invite the attention of law enforcement officers in today’s society. They must be assessing you when they suspect you have a weapon. Society demands that law enforcement officers pay attention to people with weapons in public. You will be approached and watched by LEO’s when you are carrying. Most of the time, if no threat is detected, they will move on, but expect contact. You don’t have to speak to them. The contact will be consensual unless a violation is observed.
Also, it bears stating that when a LEO stops a vehicle and the occupant has a handgun license, it tells the officer a lot about you as a person. It tells them, “This is a citizen who has taken the time to go through a class, that has been through background checks and fingerprints. This is a person that has proven to an instructor that they are safe with their handgun. They have taken the steps to ensure that officers can feel safe in that encounter.” It tells prosecutors and juries the same thing. You may simply find it more practical and less expensive to continue to carry concealed with a license. I still feel that it remains “cheap insurance to make sure that I don’t have any issues.”
I’m really glad this court case went the way it did. Again, I don’t think Taff is a hero in all this. I pray he gets his life sorted out. I think the Arkansas Court of Appeals got this ruling right. I share this even though it's going to hurt our business. But, I think it’s a win for rights in our state, and any time the 2nd Amendment wins, I think it's worth celebrating.
Disclaimer: This is not legal advice and is provided for entertainment and informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular activity before deciding on a course of action. Neither Arkansas Armory nor its employees, officers, or agents are responsible for any actions you decide to take based on the information presented here. Get an attorney and follow their advice on areas of the law that may be controversial.
This decision, at the Court of Appeals level, means that the mere carrying of a firearm without illegal intent, absent any other facts, isn’t a violation of 5-73-120 Carrying a Weapon. That provides Arkansans with a tremendous defense against the state wishing to press charges against a citizen for simply carrying a firearm for their own protection. It also makes clear that law enforcement cannot detain a person for only carrying a firearm!
This is a win for citizens in our state!
So let's break down the ruling a little bit.
On April 4, 2017 the Montgomery County Sheriff’s Office received a call from an employee of a local store reporting that a man, later identified as Jamie Taff, was carrying a pistol in his waistband, acting suspiciously, and going in and out of the store several times. Two deputies responded to the call and one of the deputies ultimately encountered Taff walking down the highway towards the county line. As the deputy approached Taff, he activated his blue lights and pulled behind Taff. At the time this deputy activated the lights, Taff had not been observed breaking any laws - a fact that the deputy testified to in court.
At this point, Taff continued to walk a few steps, stopped, turned, faced the deputy, reached into his left pants pocket, and began to reach towards his right side (where his pistol was located). The deputy drew his service weapon, took Taff into custody, searched him, and located narcotics and the pistol on Taff.
I want to make this clear, Taff is no hero in my eyes. It appears that he was carrying drugs and a pistol, and may have been making motions to threaten the life of a fellow Law Enforcement Officer. I am grateful that no one (the officers, and Taff) were not injured in this encounter.
That said, there is a principle in law called “The fruit of the poisonous tree”. If the search violated Taff’s rights, then any of the contraband found on him has to be ignored by the court. Taff contended that the deputy didn’t have the right to search him, because merely carrying a weapon while walking down the side of a public road isn’t a crime. If the deputy couldn’t stop and search him, then anything he found must be ignored (the fruit of the poisonous tree).
The Arkansas Court of Appeals agreed with Taff. The law enforcement officers didn’t have the right to legally activate their blue lights and detain him at the time. They could have approached Taff and had a consensual conversation with him or simply could have followed him and observed his activities. However, at the moment the deputy activated his blue lights, no “reasonable suspicion” of a crime was present. Therefore, everything that happened after that must be ignored by the court.
In many ways, this is a bigger 4th Amendment case than it is a 2nd Amendment one, but the ruling makes several key statements.
The court affirms that “Merely possessing a weapon is not a crime in the State of Arkansas” under 5-73-120. It reminds that a person must be carrying “with a purpose to attempt to unlawfully employ the handgun . . . as a weapon against a person” to be found guilty of a violation of 5-73-120 and may be carried on a person so long as it “does not violate other laws or regulations.”. It makes clear that, “Under the rule of lenity, any doubts as to the interpretation of a criminal statute are resolved in favor of the defendant.” Moreover, Taff was walking in a direction leaving Montgomery County,.
This is great news! It means that the police can’t detain us simply for carrying a firearm, as long as we aren’t violating other laws or regulations.
That said, a violation of ACA 5-73-120 Carrying a Weapon, isn’t the only statute that we have to worry about. I am concerned about the traps and false sense of security that this ruling may create. I fear that this will cause many Arkansans to mistakenly believe that they can carry anywhere, at anytime. This isn’t the case.
We have the Federal Gun Free School Zones Act. This makes it a felony to be within 1000 feet of a school’s property with a firearm, unless certain exemptions are met. One of those exemptions is if the “individual possessing the firearm is licensed to do so by the State in which the school zone is located” That means the Arkansas CHCL exempts you from the federal Gun Free School Zones. So, if you want to legally be able to drop kids off at school with your pistol in the car, or even practically drive through most urban areas you will still need a CHCL.
Further, don’t forget about the wide array of federally prohibited places. Post offices, military installations, the social security administration, federal courthouses, the VA, and more are all places in Arkansas that are unaffected by this.
When we look at other Arkansas law, we can find a wide array of places that will remain illegal to carry without a license. Generally speaking A.C.A. 5-73-119 makes it illegal to carry on school and college property (or bus stops) without a license. A.C.A. 5-73-122 makes it illegal to carry into “publicly owned buildings and facilities” including public offices, parks, sports fields, and other public recreational structures and properties) without the Enhanced License. Of course it will remain illegal to carry in other obvious places like courthouses. Carry into places licensed for alcohol consumption on the premises is illegal without an Enhanced license (or a restaurant with a regular CHCL).
The regular CHCL allows you to carry into a private employer parking lot. Carrying to a place that has a “no weapons” policy could subject you to criminal trespass charges if you don’t have a license. Also, remember that a license is likely required by other states you may be traveling to beyond Arkansas.
This isn’t a comprehensive list of all the places where carry will remain prohibited without a license. If you choose to carry without one, you are signing up to know all the intricacies. The legislature has a lot of work to do if they want to make carry easier.
I think it’s also important to note that the court said that the officers could have handled the situation differently. Carrying openly will invite the attention of law enforcement officers in today’s society. They must be assessing you when they suspect you have a weapon. Society demands that law enforcement officers pay attention to people with weapons in public. You will be approached and watched by LEO’s when you are carrying. Most of the time, if no threat is detected, they will move on, but expect contact. You don’t have to speak to them. The contact will be consensual unless a violation is observed.
Also, it bears stating that when a LEO stops a vehicle and the occupant has a handgun license, it tells the officer a lot about you as a person. It tells them, “This is a citizen who has taken the time to go through a class, that has been through background checks and fingerprints. This is a person that has proven to an instructor that they are safe with their handgun. They have taken the steps to ensure that officers can feel safe in that encounter.” It tells prosecutors and juries the same thing. You may simply find it more practical and less expensive to continue to carry concealed with a license. I still feel that it remains “cheap insurance to make sure that I don’t have any issues.”
I’m really glad this court case went the way it did. Again, I don’t think Taff is a hero in all this. I pray he gets his life sorted out. I think the Arkansas Court of Appeals got this ruling right. I share this even though it's going to hurt our business. But, I think it’s a win for rights in our state, and any time the 2nd Amendment wins, I think it's worth celebrating.
Disclaimer: This is not legal advice and is provided for entertainment and informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular activity before deciding on a course of action. Neither Arkansas Armory nor its employees, officers, or agents are responsible for any actions you decide to take based on the information presented here. Get an attorney and follow their advice on areas of the law that may be controversial.
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