South Dakota’s hate and gun laws have significant gaps that allow people to keep and access guns, including assault weapons, after they have been convicted of violent hate crimes.
Access to Guns for People Convicted of Hate Crimes in South Dakota
| Violence with Severe Bodily Injury | Violence with Bodily Injury | Other Crimes Involving Intentional Use of Force | Threats with Deadly Weapons | Other Credible Threats to Physical Safety | |
|---|---|---|---|---|---|
| Federal Law | Very limited or no access | Very limited or no access | Very limited or no access | Very limited or no access | Very limited or no access |
| State Law | Very limited or no access | Very limited or no access | Very limited or no access | Some access | Significant access |
South Dakota’s hate crime law makes it a felony (called “malicious intimidation or harassment”) to, among other things, maliciously cause or credibly threaten to cause physical injury with specific intent to intimidate or harass a victim or victims because of their race, ethnicity, religion, ancestry, or national origin.1 (Gender, gender identity, disability, and sexual orientation are not included as protected categories).
South Dakota prohibits people from accessing guns for 15 years after completing a sentence for a “crime of violence,” which is defined to include specified crimes like aggravated assault and any other felony in which the perpetrator used force or was armed with a dangerous weapon.2 Broader federal laws prohibit people from accessing guns if they have been convicted of a felony punishable by over one year in prison, or a state law misdemeanor punishable by more than two years.3 (In South Dakota, misdemeanors are not punishable by more than one year,4 so people are generally subject to federal firearm restrictions only if they are convicted of felonies).
Most violent hate-motivated conduct may be charged as felony “malicious intimidation or harassment” in South Dakota, so people convicted under that hate crime law are generally subject to federal law’s firearm restrictions. If the hate crime involves the use of force or presence of a dangerous weapon, that offense will generally be considered a “crime of violence” and trigger South Dakota’s 15-year state law firearm restriction too.
People convicted of other felonies, including a felony hate crime for credibly threatening violence, are subject to federal firearm restrictions only since the offense is not considered a “crime of violence” under South Dakota law.5
Additionally, people convicted of violent misdemeanors generally remain eligible to access guns in South Dakota under both state and federal law, including people convicted of injuring someone in an assault, or stalking with threats of violence,6 though these crimes could in some cases be charged as a felony “malicious intimidation or harassment” hate crime instead.
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- S.D. Codified Laws § 22-19B-1. As a class 6 felony, this crime is generally punishable by up to two years imprisonment in the state penitentiary, although judges may instead sentence the defendant to up to one year in county jail instead. S.D. Codified Laws §§ 22-6-1(9); 22-6-1.1.[↩]
- S.D. Codified Laws § 22-14-15; S.D. Codified Laws § 22-1-2(9).[↩]
- 18 U.S.C. § 922 (g)(1); 18 U.S.C. § 921(a)(20)(B).[↩]
- S.D. Codified Laws § 22-6-2.[↩]
- S.D. Codified Laws § 22-19B-1(4). This offense is a firearm-prohibiting felony for the purposes of federal firearm laws because it is punishable by more than one year in prison but is not a firearm-prohibiting “crime of violence” under South Dakota law unless the perpetrator uses force or is armed with a dangerous weapon in committing the offense.[↩]
- S.D. Codified Laws § 22-18-1; S.D. Codified Laws § 22-19A-1.[↩]