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 our purposes, here's the important part:

Quote

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

Edited October 20, 2018 by Spats McGee

[Cougar_ml]

I just saw on Youboob the other day about a guy open carrying a rifle (slung over his shoulder, muzzle down) in Vancouver WA a few years back that had police show up with drawn weapons, give him a bunch of orders, unload his AR-15 magazine all over the sidewalk, then tell him he wasn't allowed to walk to his car on a public sidewalk, he had to go back the other direction.  They arrested him and a jury later found him guilty of whatever charge it was.  A few years later it got reversed on appeal, the appeals judge said flat out that the jury decided on emotion, not a single piece of evidence showed he did the slightest act that would suggest unlawful intent, and that just carrying around the firearm was perfectly legal.