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TOPIC: Attorney General opinion on the definition of a journey

Attorney General opinion on the definition of a journey 3 years 2 months ago #1

  • arkyhog
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Arkansas Carry has requested an Attorney General opinion on the definition of a journey in Arkansas Code 5-73-20. The office of Senator Jake Files of Fort Smith submitted the request to AG Dustin McDaniel on July 7th through the Arkansas Senate office. These opinions usually take less than 90 days to be published.

Arkansas Code 5-73-120:

5-73-120. Carrying a weapon.

(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 employ the handgun, knife, or club as a weapon against a person.

(b) As used in this section:

(1) "Club" means any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking, including a blackjack, billie, and sap;

(2) "Handgun" means any firearm with a barrel length of less than twelve inches (12'') that is designed, made, or adapted to be fired with one (1) hand; and

(3) (A) "Knife" means any bladed hand instrument that is capable of inflicting serious physical injury or death by cutting or stabbing.

(B) "Knife" includes a dirk, sword or spear in a cane, razor, ice pick, throwing star, switchblade, and butterfly knife.

(c) It is a defense to a prosecution under this section that at the time of the act of carrying a weapon:

(1) The person is in his or her own dwelling, place of business, or on property in which he or she has a possessory or proprietary interest;

(2) The person is a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties;

(3) The person is assisting a law enforcement officer, correctional officer, or member of the armed forces acting in the course and scope of his or her official duties pursuant to the direction or request of the law enforcement officer, correctional officer, or member of the armed forces;

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person's checked baggage and is not a lawfully declared weapon;

(5) The person is a licensed security guard acting in the course and scope of his or her duties;

(6) The person is hunting game with a handgun that may be hunted with a handgun under rules and regulations of the Arkansas State Game and Fish Commission or is en route to or from a hunting area for the purpose of hunting game with a handgun;

(7) The person is a certified law enforcement officer; or

(8) The person is in a motor vehicle and the person has a license to carry a concealed weapon pursuant to § 5-73-301 et seq.

(d) (1) Any person who carries a weapon into an establishment that sells alcoholic beverages is guilty of a misdemeanor and subject to a fine of not more than two thousand five hundred dollars ($2,500) or imprisonment for not more than one (1) year, or both.

(2) Otherwise, carrying a weapon is a Class A misdemeanor.



Here is the text of the request:

July 6, 2011
The Honorable Dustin McDaniel
Attorney General - State of Arkansas
ATTN: Opinions Department
323 Center Street, Suite I 100
Little Rock, Arkansas 72201

Dear Attorney General McDaniel:

I am writing this letter to formally request an Attorney General's Opinion based on the following:

BACKGROUND
One of my constituents contacted me to request a clarification of an Arkansas firearms law. Currently, Arkansas Code 55-73-120 outlines the offense of carrying a weapon/handgun.
Subsection (c)(a) of this law allows for a defense to the prosecution of this offense if the person carrying the weapon is, "upon a journey".

QUESTIONS
1. Under Arkansas Code 55-73-120(c)(4), what is the definition of the word "journey"?

2. Under Arkansas law, what does it mean to be "upon a journey"?

Thank you in advance for your attention to this request. lf I can provide you with additional information, please let me know.

Jake Files
State Senator
District 13
Attachments:
Last Edit: 3 years 1 month ago by arkyhog.
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #2

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5-73-120. Carrying a weapon.

(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 employ the handgun, knife, or club as a weapon against a person.

Now, who has to prove the purpose?
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #3

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packerfan wrote:
5-73-120. Carrying a weapon.

(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 employ the handgun, knife, or club as a weapon against a person.

Now, who has to prove the purpose?

Packer, I would assume that if you had a good lawyer that brought up that point, you would not be convicted. The law clearly says "with a purpose", and if a judge had to use legal definitions of "purpose", he would be forced to define this law very narrowly (my humble opinion). However, I don't believe any lawyer has ever challenged this law in that way.

Here are a couple of links to read; one is of a legal examination of Arkansas' gun laws and the other is a link to an Arkansas Supreme Court decision (recent) that would have been a great place to challenge the meaning of 'purpose'.

Robbing the Hunter

Boston v. State
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #4

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In the Arkansas Code, there is a section that defines the terms used in the laws listed in the Criminal section.

5-1-102(17) says:

"(17) "Purposely" or an equivalent term such as "purpose", "with purpose", "intentional", "intentionally", "intended", or "with intent to" means the same as "purposely" as defined in § 5-2-202;


5-2-202 says:


5-2-202. Culpable mental states -- Definitions.

As used in the Arkansas Criminal Code, there are four (4) kinds of culpable mental states that are defined as follows:

(1) "Purposely." A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result;

(2) "Knowingly." A person acts knowingly with respect to:

(A) The person's conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or

(B) A result of the person's conduct when he or she is aware that it is practically certain that his or her conduct will cause the result;

(3) "Recklessly." (A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.

(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation; and

(4) "Negligently." (A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.

(B) The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.


Using the definition above, 5-73-120 must be read to mean (short version):

A person commits the offense of carrying a weapon if he or she possesses a handgun for use with the conscious object to employ the handgun against a person or possesses it to cause the weapon to be used against a person.

Reading the law this way does not ban the carry of handguns in any way, unless you have the gun in the vehicle or on your person because you intend to shoot someone soon.
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #5

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That's what I read out of it.

This is why I don't think we need new laws. New laws only confuse the laws we have on the books more.
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #6

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packerfan wrote:
That's what I read out of it.

This is why I don't think we need new laws. New laws only confuse the laws we have on the books more.

If we can get the right people in there, we should do away with all gun laws, except the ones that prohibit the use of guns in a crime (wow, that almost sounds like what the founders wanted, doesn't it?).
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #7

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arkyhog wrote:
Reading the law this way does not ban the carry of handguns in any way, unless you have the gun in the vehicle or on your person because you intend to shoot someone soon.

If you are carrying a handgun without a permit for self defense, you are breaking the law because you are A) carrying a weapon and B) its purpose is use against a person. The law says nothing about whether your purpose is defensive or offensive, so your intent to use it for defense is irrelevant. If you were carrying to defend yourself from animals, that would be ok, but, if you are carrying in a wal mart, say, you'd have a very hard time convincing a jury it was for defense from snakes. lol Further, in scenarios where use against animals might be believable, I THINK having a gun (without a permit) is prima facie evidence that you're poaching. That is, it is assumed you are poaching and the burden of proof is on you to prove that you are not. Good luck proving a negative. (I don't recall the exact circumstances specified in the poaching law, though.)

Bottom line - I would strongly advise against thinking you are safe from prosecution for carrying a firearm without a permit just because you don't intend to murder someone with it.

I am not a lawyer, but that's my non-professional opinion.
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #8

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Maltz wrote:
arkyhog wrote:
Reading the law this way does not ban the carry of handguns in any way, unless you have the gun in the vehicle or on your person because you intend to shoot someone soon.

If you are carrying a handgun without a permit for self defense, you are breaking the law because you are A) carrying a weapon and B) its purpose is use against a person. The law says nothing about whether your purpose is defensive or offensive, so your intent to use it for defense is irrelevant. If you were carrying to defend yourself from animals, that would be ok, but, if you are carrying in a wal mart, say, you'd have a very hard time convincing a jury it was for defense from snakes. lol Further, in scenarios where use against animals might be believable, I THINK having a gun (without a permit) is prima facie evidence that you're poaching. That is, it is assumed you are poaching and the burden of proof is on you to prove that you are not. Good luck proving a negative. (I don't recall the exact circumstances specified in the poaching law, though.)

Bottom line - I would strongly advise against thinking you are safe from prosecution for carrying a firearm without a permit just because you don't intend to murder someone with it.

I am not a lawyer, but that's my non-professional opinion.

Which is another way of reading Arkansas's vague gun laws. From the article in one of the links I posted:
Nevertheless, an opinion poll of 70 Arkansas judges reveals that 77% of the judges feel that convictions under Act 696 will be more difficult to obtain

A large majority of Arkansas judges seem to think it would be hard to convict someone with the way the law is written. But again, if the law wasn't vague, there would have been no need for the article.
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #9

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Trust me I don't have the time nor money to test the law.

But according to the law any pocket knife is a weapon. Why would you need to carry a knife into Walmart?
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Re: Attorney General opinion on the definition of a journey 3 years 2 months ago #10

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packerfan wrote:
Trust me I don't have the time nor money to test the law.

But according to the law any pocket knife is a weapon. Why would you need to carry a knife into Walmart?

Not ANY pocket knife - only one you are carrying for use against a person. Knives have many non-weapon uses. No one is going to try to claim you were carrying a 2" swiss army knife for self defense. Well, unless you're in an airport. (Don't even get me started...)
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