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.

An abuser who has been convicted of certain crimes may be prevented from having or buying a gun for a period of time after the conviction. For more information, see If the abuser has been convicted of a crime, can s/he keep or buy a gun?

Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun in certain situations. Go to Federal Gun Laws to get more information.

In South Dakota, as part of an ex parte temporary order, the judge can order the abuser to “immediately turn over all weapons and ammunition to the local sheriff.”¹

Federal law may also prohibit the abuser from having a firearm while a temporary order is in effect but it’s not likely. If the judge gave you an ex parte temporary protective order (which means that no advance notice was given to the abuser), which is commonly done, it could still be legal for him/her to have a gun under federal law. However, if the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you the temporary protective order, it is possible that it is illegal for him/her to have a gun under federal law. The protective order must also meet certain other requirements, though. Read I have a final order of protection against the abuser. Can his/her gun be taken away? (in our Federal Gun Laws section) to find out more.

¹ See Domestic Temporary Ex Parte Order of Protection and Stalking Temporary Ex Parte Order of Protection

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.

Under South Dakota state law, it is illegal for someone to have or buy a gun for a certain amount of time if they were convicted of the following crimes:

1. 15 years after being discharged from prison, jail, probation, or parole if s/he was convicted of:
   
   1. a crime of violence in South Dakota or another state; or
   2. a felony drug crime under sections 22-42-2, 22-42-3, 22-42-4, 22-42-7, 22-42-8, 22-42-9, 22-42-10, or 22-42-19 of South Dakota law;¹ 
2. five years after being discharged from prison, jail, probation, or parole if s/he was convicted of:
   
   1. any felony drug crime listed in Chapter 22-42 of South Dakota law, other than the crimes included in #1b above; or
   2. an equivalent felony in another state;² or
3. one year after the date of conviction if s/he was convicted of a misdemeanor crime involving an act of domestic violence.³

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.

¹ SDCL § 22-14-15
² SDCL § 22-14-15.1
³ SDCL § 22-14-15.2

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)

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 el Sistema Nacional de Chequeo Instantáneo de Antecedentes Penales (“National Instant Criminal Background Check System,” o “NICS” por sus siglas en inglés). El Sistema Nacional de Chequeo Instantáneo de Antecedentes Penales es utilizado por los/as licenciatarios/as federales de armas de fuego (“FFLs,” por sus siglas en inglés) para determinar de forma instantánea si alguien es elegible para recibir explosivos o armas de fuego.¹ Si el/la agresor/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 agresor/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 agresores/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 agresor/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 agresor/a pudo comprar un arma, es legal que la tenga.

¹ National Criminal Justice Reference Service website