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Lawsuit watched as test of state's open-carry status

by Spencer Willems | January 24, 2016 at 4:07 a.m.

Gun activists, law enforcement officials and even the governor have kept an eye out for a court case that will settle some confusion -- or even disagreement -- on the rights of citizens to openly carry firearms in public.

According to the state attorney general's office, there is a lawsuit in Little Rock that has the potential to clarify this issue regarding Arkansans' Second Amendment rights.

On Thursday, Attorney General Leslie Rutledge referred to an ongoing lawsuit in Pulaski County Circuit Court as the reason why her office declined to answer a series of questions from a lawmaker regarding the intersection of the state's restrictions on concealed weapons and another law that some -- including Rutledge -- presume allows open carry.

In July 2015, James Tanner filed a lawsuit against the Arkansas State Police asking for reinstatement of his permit to carry a concealed weapon. The permit was revoked in June after Tanner openly carried a weapon in a Searcy Wal-Mart.

When asked by Rep. John Payton, R-Wilburn, whether the state's open-carry law trumps the statutory restrictions on concealed-carry permit holders, Rutledge declined to answer, saying that the office's policy is to not comment on active litigation.

"The issues raised in your request for my opinion require analysis raised in [Tanner's case]," Rutledge wrote. "The answers to these questions must be provided in the judicial forum."

On Friday, Rutledge spokesman Judd Deere said that the office will continue to monitor the case.

Deere said it was too early to tell whether this case could be the one that both Rutledge and Gov. Asa Hutchinson have predicted would reach the Arkansas Supreme Court, because it poses questions that involve constitutional interpretation.

"It could," Deere said. "That wouldn't be something I'd want to speculate on. We have to see how the case plays out."

In 2013, lawmakers tweaked the state's criminal statute, Arkansas Code Annotated 5-73-120, which says carrying a weapon is a Class A misdemeanor. Act 746 of 2013 added language that stated it was illegal to carry a gun -- or knife or club -- in order to "attempt to unlawfully employ" the weapon against an individual.

Later that year, then-Attorney General Dustin McDaniel issued an opinion stating that he did not think the change to the law on carrying a weapon allowed Arkansans to "open carry" weapons in the state. Rutledge succeeded McDaniel in January 2015.

Despite McDaniel's opinion, lawmakers and law enforcement officials remained divided over the implication of Act 746.

Hutchinson, a former federal prosecutor, thinks current law allows open carry. Rutledge does, too, and in an opinion last August stated that although it's legal, police have a right to approach someone openly carrying if that person acts suspiciously.

Over the past few years, there have been several arrests of people claiming they were exercising their right to open carry, though prosecutors eventually dismissed charges.

Tanner's suit stems from an arrest after an incident in November 2014.

According to court records, Tanner was at the Searcy Wal-Mart and a state police officer noticed that Tanner was carrying a pistol openly.

The officer approached Tanner and asked for his identification, but Tanner declined and walked off. He was eventually arrested and charged with obstruction of governmental operations, but he was not charged with carrying a weapon. He was convicted of the misdemeanor and fined.

State police officials revoked Tanner's permit to carry a concealed weapon, citing several reasons, including his failure to notify the trooper that he had a weapon and for not concealing his weapon.

Tanner's attorney, Shane Ethridge, argued that state regulations say a licensee "may" carry a concealed gun and that it is not required that he conceal his weapon. He also pointed out that Tanner was not prosecuted for carrying a weapon.

State police officials found that the lack of a charge for carrying a weapon was irrelevant and ruled that Tanner violated the rules governing conceal-and-carry permits by openly carrying his weapon.

Asked for further comment, Arkansas State Police spokesman Bill Sadler said that by the conceal-and-carry laws in section 5-73-3 of the Arkansas Code Annotated, state police are required to develop and execute rules for licensing permit-holders.

"As the title of the legislation infers, rules were written requiring licensees to carry their handguns concealed," Sadler wrote. "The manner in which the firearm must be carried hasn't changed. A licensee must keep the firearm concealed."

Ethridge did not return a call for comment on Friday. Tanner's case has yet to go to trial.

Payton, who was unfamiliar with Tanner's suit, said he didn't want to speculate on the case. The legislator said he requested Rutledge's opinion because he was researching whether or not it will be necessary for lawmakers to rewrite some state laws going forward.

Payton, among other gun-rights supporters, thinks it isn't necessary for lawmakers to craft new laws explicitly saying Arkansas is an open-carry state.

For Payton and other supporters, the right to open carry is protected by the Second Amendment of the U.S. Constitution and it allows citizens to protect themselves.

But just as much as "law-abiding" citizens have a right to openly carry, Payton said, law enforcement officials have a right to ask why.

"We do not remove someone's constitutional rights or civil liberties until they have committed crimes," Payton said. "We need to assume that law enforcement is not attempting to harass you when they talk to you and request information. You should be fully cooperative with them. Police are our friends."

But some law enforcement officials, including Pulaski County Prosecuting Attorney Larry Jegley, interpret the law to mean that Arkansans are not entitled to openly carry guns. Jegley has said that he thinks the Legislature should clarify that in state law since two different attorneys general came up with two different answers to the question.

Opponents have argued that the conflict created by the state's requirements for conceal-and-carry permit holders indicates that Act 746 was not intended to allow open carry.

Metro on 01/24/2016

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