Defendant Not Guilty on Carrying a Weapon Charge; Judge Says Act 746 Confusing
The small district courtroom in Greenbrier saw a packed house on Tuesday as defendant Kirby Ward’s trial on the charge of carrying a weapon took only about thirty minutes. It ended with Judge David Reynolds finding Ward Not Guilty on the charge because he was on a “journey”, which is a defense to the charge. The Judge referred to opinions from Governor Asa Hutchinson and Attorney General Leslie Rutledge stating that “saying Act 746 has created confusion is the understatement of the year.” The Judge also ruled Ward’s gun be returned to him after it was confiscated in a traffic stop back in May.
Dozens from the group Patriots of Act 746and other 2ndAmendment advocates from around the state were in attendance to show their support for Mr. Ward. Many saw the charge against Ward as an infringement on his second amendment rights, and specifically his right to constitutional carry and open carry under Arkansas law.
Back in May, Mr. Ward was pulled over for expired tags on his vehicle. He parked his car, took his handgun from his waist, unloaded it, and placed it on the dash. Immediately after, officer Lucas Emberton and Chief Gene Earnhart of the Greenbrier police department approached the vehicle.
Bodycam footage shown during the trial revealed the entire story from there. A twenty-minute confrontation resulted in the confiscation of Mr. Wards gun. He was charged with expired tags and for carrying a weapon.
Under Arkansas law, a person is guilty 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.”It is a Class A misdemeanor. A defense to the charge is if person was on a “journey” which is defined as traveling to another county.
Act 746 of 2013 changed this section of Arkansas law requiring that for a conviction for the charge of carrying a weapon a person must have unlawful intent. This change aimed to make clear that Arkansas is a constitutional carry state.
During the stop, Chief Earnhart stated that Mr. Ward “needed a conceal carry permit in order to carry a concealed handgun in Arkansas.” Mr. Ward stated he believed we had constitutional carry in Arkansas. He mentioned that he heard “Asa Hutchinson could hardly admit it, but he did say it.” Chief Earnhart told Ward that “if he was not smart enough to not unload a gun in front of a police officer, then he was not smart enough to carry a gun.”
City prosecutor Dustin Chapman took the charge to trial. In his closing argument Chapman claimed he was fine with Ward getting his gun back if the Judge decided that Mr. Ward was either on a journey or did not have unlawful intent to use the weapon. When asked after the trial if he thought Act 746 allowed for constitutional carry or open carry in the state, Chapman said he could not answer for the state and that the statute said what is says.
Officer Emberton was first to testify during the trial. The bodycam footage came from him. On Direct he testified that he wrote the citation because he did not believe any defenses applied and that Mr. Ward had an unlawful purpose. When asked by City Attorney Chapman about the purpose, he stated he did not know the purpose. Then City Attorney Chapman asked if Officer Emberton thought his purpose was to shoot him or use the gun against him. Officer Emberton then changed his answer to yes.
A few minutes later Emberton stated he did not know what Ward’s intent was. He also testified that he was fine with Ward getting his gun back if the Judge so ruled. Emberton agreed with the city prosecutor that neither he nor the Greenbrier police department had a mission to confiscate guns. He stated he had only issued about one or two other citations for carrying a weapon in the past three years and those had been for clubs and brass knuckles.
Officer Emberton stated he had no problem with people having guns if they carried safely. During the stop Officer Emberton stated that “there are too many officers getting killed” and that Ward should go get a permit. Chief Emberton also mentioned that Ward and “others in the audience” had been contacting him on Facebook asking him to give Ward’s gun back and educating him on Act 746 and constitutional carry in Arkansas.
On cross-examination, Ward’s public defender Chris Murray got Emberton to admit that Ward’s true purpose with the gun was to unload it and put it safely on the dash and not to use it for a unlawful purpose. Murray also elicited testimony that Emberton was told by Ward he was coming from work from outside of Faulkner County. Emberton said he did not know if that was true though.
Chief Gene Earnhart of the Greenbrier police department then briefly testified. He has been working in law enforcement for almost 29 years. He testified that he had no problem with anyone carrying a gun and just wanted the defendant to know what not to do to make sure everyone is safe.
Defendant Kirby Ward then took the stand and testified. He testified he placed the gun on the dash and unloaded it for both the safety of the officers and himself. He stated he had been told to do that and that Conway police officers had thanked him previously for doing that.
Ward took the position that he was in fact on a journey as he was traveling outside the county and back for work. He talked about how he was a competitive shooter and had safely carried and used a gun for years. He stated there are too many people getting shot on both sides and did not want that.
Ward now has his conceal carry license. However, when asked by city attorney Chapman if he thought he had the right to open carry like he was under Act 746 he stated “ I do have that right.”
In closing, Chapman argued that he was not trying to make history. He claimed that Act 746 and this law was more of an academic exercise for law professors, and that officers jobs were to just get home at the end of the day. Chapman claimed he was fine with whatever decision the Judge made and had no objection to Ward getting the gun back. He claimed he wanted to go to trial to allow the officers to fully explain the situation of what happened.
Judge David Reynolds then ruled that Mr. Ward was not guilty because he was on a journey. He did not comment or rule on the “unlawful intent” section of the statute. He ruled that the city must give Mr. Ward his gun back.
After the Trial
After the trial, Gary Epperson, leader of the Patriots of Act 746 group, stated he was pleased with the outcome but wished the judge would have also ruled that there was no unlawful intent. He hopes that this will be a learning opportunity for officers around the state to know that we have constitutional carry.
Kirby Ward told Conduit News after the trial he was pleased with the outcome and glad to get his gun back. He stated he appreciated the support from the Patriots of Act 746 group and that they were true constitutional patriots.