If 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.1 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.2 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.
1 See Domestic Permanent Order of Protection, Domestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
2 SDCL § 25-10-24
Who 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 Advocates and Shelters 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.1
1 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)
What 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.1 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.2 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.3
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.4
1 SDCL § 25-10-13
2 SDCL §§ 22-14-15; 22-14-15.1
3 SDCL § 22-14-15.2
4 18 USC § 924(a)(2)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.