Red Flag Laws / Extreme Risk Protection Orders

South Dakota does not have an Extreme Risk Protection Order (ERPO) or "red flag" law. The state legislature has not enacted a statute authorizing a court to order the temporary removal of firearms from a person identified as a danger to self or others on the basis of behavioral concerns alone. South Dakota is one of approximately 20 U.S. states without an ERPO framework.

What South Dakota Has Instead

South Dakota's tools for removing firearms from a person who is a danger to self or others come from three other statutory frameworks:

1. Mental-Health Commitment (SDCL Chapter 27A)

A person who is involuntarily committed for mental-health treatment under SDCL Chapter 27A becomes a federal prohibited person under 18 U.S.C. Section 922(g)(4) - prohibited from possessing a firearm. The commitment must be by a court order after due-process notice and hearing; an emergency hold (typically up to 24 hours) does not by itself trigger the prohibition.

The federal Section 922(g)(4) prohibition is permanent unless the person obtains relief through a state restoration program (NICS Improvement Amendments Act of 2007, 18 U.S.C. Section 925(c) administrative-relief framework). South Dakota does not currently operate a fully-funded NICS Improvement Amendments Act restoration program.

A person involuntarily committed:

• Becomes a prohibited person under federal law (18 U.S.C. Section 922(g)(4)).
• Becomes ineligible for a Regular, Enhanced, or Gold Card permit under SDCL Section 23-7-7.1(5) ("found in the previous ten years to be a danger to others or self, or currently adjudged mentally incompetent").
• Is required to surrender any firearms in possession to law enforcement at the time of the commitment order under standard commitment-court practice.

2. Domestic-Violence Protection Orders (SDCL Chapter 25-10)

A court may issue a domestic-violence protection order under SDCL Section 25-10-7 against a person who has committed an act of domestic abuse. The order:

• Triggers the federal Section 922(g)(8) prohibition on firearm possession during the pendency of a qualifying order with notice, hearing, and a finding that the respondent represents a credible threat to the physical safety of an intimate partner or child.
• May include, at the court's discretion, an express provision requiring the respondent to surrender firearms to law enforcement.

The Domestic Violence Protection Order is not an ERPO - it requires an underlying act of domestic abuse, not a generalized behavioral concern. But for the narrow domestic-violence context, it serves as the principal court-ordered firearm-removal tool in South Dakota.

3. Conditions of Pretrial Release or Probation

A circuit court may impose, as a condition of pretrial release under SDCL Section 23A-43 or as a condition of probation under SDCL Chapter 23A-27, a prohibition on firearm possession during the pendency of the criminal case or during the probationary period. This is case-by-case and discretionary; it is not an automatic or generalized red-flag-style order.

Legislative History on ERPO Proposals

Bills proposing an ERPO framework for South Dakota have been introduced in the legislature in recent sessions but have not advanced out of committee:

• A 2019 ERPO bill (introduced in the wake of national interest after the Parkland shooting) did not pass.
• Subsequent ERPO bills in 2021 and 2023 sessions did not advance.

The lack of legislative appetite has been driven in part by Second Amendment concerns about due-process protections in ex parte hearings, by federalism concerns about temporary firearm removal without a criminal conviction, and by general policy opposition from the legislature's majority caucus.

Practical Effect

For South Dakotans, the lack of a red-flag statute means:

• Family members of a person in mental-health crisis cannot petition a court directly for a temporary firearm-removal order the way they could in states with ERPOs.
• Law enforcement officers responding to a behavioral-health call do not have a state-law-authorized warrantless firearm seizure power based on dangerousness alone. The officer may secure firearms incident to a Fourth Amendment-justified search (consent, warrant, exigent circumstances), and may invoke the mental-health commitment process under SDCL Section 27A-10-1 if the legal standard is met.
• The default tool for firearm removal in a behavioral-health crisis is involuntary commitment under SDCL Chapter 27A, which carries permanent federal Section 922(g)(4) consequences and requires the statutory clinical threshold.

Federal Section 922(g) Triggers That Apply in South Dakota

Even without a state ERPO, federal law prohibits firearm possession by:

• Convicted felons (Section 922(g)(1))
• Fugitives from justice (Section 922(g)(2))
• Unlawful users of controlled substances (Section 922(g)(3))
• Persons adjudicated mentally defective or involuntarily committed (Section 922(g)(4))
• Illegal aliens (Section 922(g)(5))
• Persons dishonorably discharged (Section 922(g)(6))
• Persons who have renounced U.S. citizenship (Section 922(g)(7))
• Persons subject to qualifying domestic-violence protection orders (Section 922(g)(8))
• Persons convicted of misdemeanor crimes of domestic violence (Section 922(g)(9))

Federal prosecution under any of these subsections is available in South Dakota through the United States Attorney for the District of South Dakota.

Surrender Procedures (When Required)

When a court order or federal prohibition triggers a firearm-surrender obligation:

• Domestic-violence protection order: The respondent must surrender firearms to local law enforcement or, in some circumstances, to a third-party custodian acceptable to the court. The protection order should specify the deadline and the receiving agency.
• Involuntary commitment: The court order should direct surrender. The sheriff or local police take custody.
• Federal Section 922(g) status acquired during ongoing firearm ownership: The owner must lawfully transfer the firearms to a non-prohibited person or to a Federal Firearms Licensee. Voluntary surrender to local law enforcement is also available, generally without compensation.

Recovery of surrendered firearms requires court order showing that the disqualifying status has been lifted.

Bottom Line

South Dakota law does not authorize ERPO petitions, red-flag orders, or generalized behavioral-concern firearm removal. Firearm removal occurs through:

1. Federal-law prohibited-person status (the universal underlay).
2. Mental-health commitment (SDCL Chapter 27A).
3. Domestic-violence protection orders (SDCL Chapter 25-10).
4. Case-specific conditions of pretrial release or probation.

A family member or friend concerned about a person's behavioral health and firearm access should contact local law-enforcement non-emergency dispatch for a welfare check; the responding officers will assess whether the SDCL Chapter 27A involuntary-commitment standard is met. If the person is a danger to self or others, a temporary mental-health hold and an involuntary-commitment petition can lead to a Section 922(g)(4) prohibition. There is no shortcut through an ERPO-style petition.

Sources

• SDCL Chapter 27A (Mental Health Care)
• SDCL Section 27A-10-1 (Emergency mental-health hold)
• SDCL Chapter 25-10 (Domestic Violence Protection Orders)
• SDCL Section 25-10-7 (Issuance of protection order)
• SDCL Chapter 23A-43 (Pretrial release)
• SDCL Section 23-7-7.1 (Permit eligibility - the danger-to-self-or-others provision)
• 18 U.S.C. Section 922(g)(4), (8), (9) (Federal prohibited-person provisions)
• 18 U.S.C. Section 925(c) (Administrative relief)