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Conozca la Ley: South Dakota

ACTUALIZADA 2 de junio, 2017

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Below is information about state gun laws in South Dakota.  However, in addition to these state-specific laws, there are also federal gun laws that could apply.  To fully understand all of the legal protections available, it is important that you also read the Federal Gun Laws pages.

WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate or lawyer in your community for more information on gun laws in your state.  To find an agency, please go to the SD Where to Find Help page.

Basic Info and Definitions

arribaWhat is the difference between federal and state gun laws?

In these gun laws pages, we refer to both "federal gun laws" and "state gun laws."  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun?  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

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arribaWhat is the definition of a felony?

In South Dakota, a felony is a crime for which someone can or must be sentenced to imprisonment in the state penitentiary.  Any other crime is a misdemeanor.*

* SDCL § 22-1-4

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arribaI am a victim of domestic violence and the abuser has a gun. Is that legal?

Under South Dakota state law, it is illegal for someone to have/buy a gun if s/he:

  1. was convicted in South Dakota or another state of a crime of violence; (Note: The law actually says that it is illegal for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime. After that, s/he can legally have a gun);*
  2. was convicted of a felony drug crime under the section of the law called "Chapter 22-42. Controlled Substances and Marijuana,"* which are all listed on the South Dakota Legislature website.  (Note: If s/he was convicted of certain felony crimes in Chapter 22-42 that are listed on our website here, then it is illegal to have/buy a gun for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime.*  However, if the conviction was for one of the felony crimes that is listed on the South Dakota Legislature website but not listed on our website here, then it is only illegal to have/buy a gun for 5 years after the person was last discharged from prison, jail, probation, or parole for the crime);*1 or 
  3. was convicted of a misdemeanor crime involving an act of domestic violence; (Note: It is only illegal to have/buy a gun for the first year after the date of the conviction.  After that, s/he can legally have/buy a gun.)*2

In addition, a person cannot get a permit to carry a concealed weapon if s/he:

  • is under age eighteen;
  • pled guilty to, pled no contest (nolo contendere) to, or was convicted of a felony;
  • pled guilty to, pled no contest (nolo contendere) to, or was convicted of a crime of violence;
  • is habitually in an intoxicated or drugged condition;
  • has a history of violence;
  • was determined to be a “danger to others” or a “danger to self” at some point during the past 10 years;
  • is currently deemed mentally incompetent by a judge;
  • has not physically resided the county where the application is being made for at least the past thirty days;*3 (although there is an exception to this for members of the military and their spouses);*4
  • has been convicted of a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42 within the past five years (or is currently under indictment for one of those crimes);
  • is not a citizen or legal resident of the United States; or
  • is a fugitive from justice.*3

If any of these situations apply to the abuser, it may be illegal for him/her to have a gun.  Also, federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a restraining order against him/her that meets certain requirements or if s/he has been convicted of a felony or domestic violence misdemeanor.  Go to Federal Gun Laws to get more information.

* SDCL § 22-14-15
*1 SDCL § 22-14-15.1
*2 SDCL § 22-14-15.2
*3 SDCL §§ 23-7-7; 23-7-7.1
*4 SDCL § 23-7-7.5

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Guns and Protection Orders

arribaI have a temporary order against the abuser. Can his/her gun be taken away?

 

 

 

 

 

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arribaI have a protection order against the abuser. Can s/he keep a gun or buy a new gun?

In South Dakota, as part of an ex parte temporary order or a final protection order, the judge can order the abuser to "immediately turn over all weapons and ammunition to the local sheriff."*  A person can also be denied a permit to carry a concealed weapon if s/he has a "history of violence,"** although the law doesn't specifically define what this means.

Federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun.  Go to the Federal Gun Laws page to get more information.

If you are afraid for your safety, talk to your local domestic violence program about your options.  Go to the SD State and Local Programs to find a program in your area.

* See Domestic Permanent Order of ProtectionDomestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
** SDCL §§ 23-7-7; 23-7-7.1(4)

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arribaIs there anything I can do to make it more likely that the abuser's gun is taken away when I get a protection order?

Here are a few things that may help:

  • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s);
  • Ask the judge to specifically write in your protective order that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for a protective order will have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
  • Before leaving the courthouse, check to make sure that the gun restriction is written on your order.

It also may be helpful if the judge explains what will happen to the abuser's guns, who will take them, and where they will be held once you leave the courthouse. If the judge agrees to add language that the abuser cannot keep his/her guns while the protection order is in effect, you may also want to ask that the judge:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser's house and get them;
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
  • Order that the police notify you when the guns are returned to the abuser.

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Guns and Criminal Convictions

arribaIf the abuser has been convicted of a crime, can s/he keep or buy a gun?

It may be illegal to have a gun depending on the crime.  Under South Dakota state law, it is illegal for someone to have/buy a gun if s/he:

  1. was convicted in South Dakota or another state of a crime of violence; (Note: The law actually says that it is illegal for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime. After that, s/he can legally have a gun);*
  2. was convicted of a felony drug crime under the section of the law called "Chapter 22-42. Controlled Substances and Marijuana,"* which are all listed on the South Dakota Legislature website.  (Note: If s/he was convicted of certain felony crimes in Chapter 22-42 that are listed on our website here, then it is illegal to have/buy a gun for 15 years after the person was last discharged from prison, jail, probation, or parole for the crime.*  However, if the conviction was for one of the felony crimes that is listed on the South Dakota Legislature website but not listed on our website here, then it is only illegal to have/buy a gun for 5 years after the person was last discharged from prison, jail, probation, or parole for the crime);** or 
  3. was convicted of a misdemeanor crime involving an act of domestic violence; (Note: It is only illegal to have/buy a gun for the first year after the date of the conviction.  After that, s/he can legally have/buy a gun.)***

In addition, a person cannot get a permit to carry a concealed weapon if s/he:

  • pled guilty to, pled no contest (nolo contendere) to, or was convicted of a felony;
  • pled guilty to, pled no contest (nolo contendere) to, or was convicted of a crime of violence;
  • has been convicted of a felony or misdemeanor crime under Chapter 23-7, 22-14, or 22-42 within the past five years (or is currently under indictment for one of those crimes); or
  • is a fugitive from justice.****

Federal laws, which apply to all states, also restrict a person's right to have a gun if s/he has been convicted of certain crimes.  Go to Federal Gun Laws to get more information.

* SDCL § 22-14-15
** SDCL § 22-14-15.1
*** SDCL § 22-14-15.2
**** SDCL §§ 23-7-7; 23-7-7.1

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arribaHow can I find out if the abuser has been convicted of a crime?

Misdemeanor and felony records are open to the public, but they are not always easy to access.  If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

In addition to the prohibitions under South Dakota laws based on convictions for various crimes, federal law specifically prohibits possession of a firearm if the person is convicted of any felony or of a domestic violence misdemeanor.  Criminal records that would make a person ineligible to purchase a firearm under federal law are also kept in the National Instant Criminal Background Check System (NICS).  However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS.  Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?

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The Abuser Isn’t Supposed to Have a Gun…Now What?

arribaIf the abuser's gun is taken away, what will happen to it?

If the abuser’s gun is ordered to be taken away as part of your protection order, the abuser may be required to turn it over to the local sheriff department.*  It may then either be held by the sheriff department, or in some cases, the authorities may allow the abuser to leave the gun with a friend or relative while your protection order is in effect. 

If the abuser’s gun is taken by the police as part of a criminal case, s/he may be required to turn it over to local law enforcement.**  In most states, guns that are given to law enforcement are either sold or destroyed if the abuser is convicted of the crime.  If the abuser is not convicted of the crime, the gun will most likely be given back to him/her.

* See Domestic Permanent Order of ProtectionDomestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
** SDCL § 25-10-24

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arribaWho do I notify if I think the abuser should not have a gun?

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the state police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). 

You can find contact information for sheriff departments in your area on our SD Sheriff Departments page.

You can find ATF field offices in South Dakota on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer. 

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our SD State and Local Programs page. 

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.* 

United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

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arriba¿Qué pasará si el abusador intenta comprar un arma?

Antes de comprar un arma de fuego de un/a vendedor/a licenciado/a, todos los/las compradores/as deben someterse a un chequeo de antecedentes penales realizado por Centro Nacional Instantáneo sobre Antecedentes (NICS por sus siglas en inglés).  Si el/la abusador/a tiene una orden de protección calificada en su contra o, si ha sido sentenciado/a por un delito grave o un delito menos grave por violencia doméstica intrafamiliar en cualquier estado, esos registros deben estar en el NICS, lo cual debería imposibilitarle a el/la abusador/a comprar un arma de fuego.  No todos los estados tienen un sistema automatizado de registro, lo que dificulta el proceso de verificación de antecedentes penales, por lo tanto, algunos criminales y abusadores/as logran burlar el sistema.  También es importante saber que no se necesita una verificación de antecedentes penales para ventas privadas y a través del Internet.

Si el/la abusador/a pudo comprar un arma y usted entiende que él/ella no debe tener una legalmente, usted puede avisarle a la policía y pedir que le quiten el arma y quizás ellos/as lo/a investigarán.  Generalmente no es buena idea asumir que porque el/la abusador/a pudo comprar un arma, es legal que la tenga. 

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More Information and Where to Get Help

arribaWhat is the penalty for violating the firearm laws?

If the judge includes as one of the terms of your protection order that the abuser must turn over his/her firearms, s/he can be charged with a class 1 misdemeanor if s/he violates that term of the protection order.*  If s/he violates the criminal law that prohibits a person convicted of a crime of violence or certain drug crimes from having a firearm, it can be a class 6 felony.**  If s/he violates the criminal law that prohibits a person convicted of a misdemeanor crime involving an act of domestic violence from having a firearm, it can be a class 1 misdemeanor.***

In addition, anyone who owns, has or buys a gun in violation of the federal firearm laws can be punished by a fine, jail time for up to 10 years, or both.****

* SDCL § 25-10-13
** SDCL §§ 22-14-15; 22-14-15.1
*** SDCL § 22-14-15.2
**** 18 USC § 924(a)(2)

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arribaI do not have a protection order against the abuser and s/he has not been convicted of a crime. Can s/he have a gun?

Para más información sobre las leyes de armas de fuego en South Dakota, puede ir al sitio web del Centro Legal para Prevenir la Violencia con Pistolas.

 

 

 

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arribaI've read through all of this information, and I am still confused. What can I do?

Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the firearm laws and how they may apply to you: 1-800-903-0111, ext. 2.
  • You can write to our Email Hotline.
  • You can contact a local domestic violence organization in your area by clicking on SD Where to Find Help page.

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