July 6, 1990

Colonel James Jones, Superintendent
South Dakota Highway Patrol
500 East Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 90-21

Concealed weapon permits

Dear Colonel Jones:

You have requested an official opinion from this Office regarding the following factual situation:

FACTS:

Highway Patrol policy authorizes members to carry issued or privately owned weapons intended for official use on or off duty in civilian clothes if they meet certain specific requirements. By internal Highway Patrol policy, all uniformed personnel, regardless of rank or supervisory status, are considered law enforcement officers at all times. They are subject to call for duty at any hour or for any emergency. Uniformed officers of the Highway Patrol are charged by statute with the responsibility of detecting crime, apprehending criminals, and enforcing the criminal and traffic laws of the State. These responsibilities extend to off duty as well as on duty times. If criminal activity is encountered which may endanger the life or property of any citizen, uniformed officers of the Highway Patrol, even though off duty, are expected to take appropriate action to prevent the crime from occurring or apprehend the individuals involved.

Based upon the above facts, you have asked the following question:

QUESTION:

Do off duty Highway Patrol officers need a pistol permit to carry a concealed weapon?

IN RE QUESTION:

SDCL 22-14-9 sets forth an exemption from the general requirement of a permit to carry a concealed pistol. That section states as follows:

Any person, other than a law enforcement officer when acting as such, is guilty of a Class 1 misdemeanor if he:

(1) Carries a pistol or revolver, loaded or unloaded, concealed on or about his person without a permit as provided in chapter 23-7; or

(2) Carries a pistol or revolver, loaded or unloaded, concealed in any vehicle operated by him, without a permit as provided in chapter 23-7.

The question then becomes whether a uniformed officer of the South Dakota Highway Patrol, under the "on call" status described in your factual situation, is "a law enforcement officer . . . acting as such." For purposes of this question, I am assuming that by the terms "uniformed officer" or "uniformed personnel," you have asked the question about the class of employees who regularly act in a law enforcement capacity. I assume that your designation has nothing to do with whether the officer is in or out of uniform at the time of his law enforcement activities. In Official Opinion No. 75-171, a question was asked as to whether reserve police officers were required to have a concealed weapon permit when they were carrying concealed weapons during off duty hours. At the time of that Opinion, law enforcement officers were not required to have a concealed weapon permit while they were on duty. At the time Official Opinion No. 75-171 was issued, however, the statutory exception from the general requirement of a permit to carry a concealed weapon was different than the current language in SDCL 22-14-9. At that time, SDCL 23-7-6, in pertinent part, stated:

The provisions of @ 23-7-5 [requiring a concealed weapon permit] shall not apply to marshals, sheriffs, prison or jail wardens, or their deputies, policemen, or other law enforcement officers or employees of railway or express companies while on duty, . . .

In Official Opinion No. 75-171, my predecessor in office reached his conclusions based upon the meaning of the phrase "on duty." The statutory exemption found in SDCL 22-14-9 is considerably different from the statutory exemption analyzed in Official Opinion No. 75-171. The factual scenario presented in your request is also much different from the factual scenario presented to my predecessor in Official Opinion No. 75-171. The question here is whether a uniformed highway patrol officer is "acting as such" under the factual scenario you describe.

The definition of "law enforcement officer" set forth in SDCL 22-1-2(22), states:

"Law enforcement officer," an officer or employee of the state . . . who is responsible for the prevention or detection of crimes, [or] for the enforcement of the criminal or highway traffic laws of the state . . . .

The uniformed officers of the South Dakota Highway Patrol certainly fall within this definition. See SDCL 32-2-8 and SDCL 32-2-9. Additionally, the uniformed officers of the South Dakota Highway Patrol have statewide jurisdiction. See SDCL ch. 32-2. Therefore, although a uniformed officer of the South Dakota Highway Patrol is not technically "on duty" under the factual scenario you describe, they are certainly "acting as [a law enforcement officer]." Thus, it is my opinion that the uniformed officers of the South Dakota Highway Patrol fall under the exemption found in SDCL 22-14-9. Therefore, they are not required to possess a concealed weapon permit for weapons concealed on their persons or in their vehicles while they are on off duty status.

In reaching this conclusion, I am not disregarding the opinion set forth in Official Opinion No. 75-171, and I am not overruling that opinion at this time. However, because your question deals with a different group of law enforcement officers, it is distinguishable from the situation found in Official Opinion No. 75-171, and thus requires a different answer.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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