STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 7, 1975
Mr. Jerald L. Cihak
Rapid City Police Department
Reserve Division
604 Kansas City Street
Rapid City, South Dakota 57701
OFFICIAL OPINION NO. 75-171
Off-duty possession of firearms by law enforcement officers
Dear Mr. Cihak:
You have requested an opinion regarding the authority of reserve police officers to carry handguns when off-duty. You state that the police reserve is a group of volunteer officers who have completed at least 100 hours of police and Red Cross training. Each officer is then placed on six months probation while being scheduled for active duty on weekends. The officers work without pay and are subject to emergency call at all times.
Before answering your specific question, I feel it necessary to point out that rules recently adopted by the South Dakota Law Enforcement Officers Standards and Training Commission, pursuant to SDCL 23-3, require all law enforcement officers, permanently or temporarily employed, to meet certain qualifications (Chapter 2:01:02). In Official Opinion 75-160 I have affirmed the right of the Commission to include part-time officers in their rules. One of the qualifications is at least 200 hours of basic training as approved by the Commission or an equivalent course from another jurisdiction. In all cases the training program must be completed within one year from the date of temporary employment.
Assuming that the reserve police officers in question have met or will meet the requirements for certification as law enforcement officers, the following statutes become relevant:
23-7-5. No person shall carry a pistol in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in §§ 27-7-7 and 23-7-8.
23-7-6. The provisions of § 23-7-5 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, ...
22-14-1. Every person who carries concealed about his person any description of firearms, being loaded or partly loaded, except as provided by §§ 23-7-2 to 23-7-19, inclusive, or any sharp or dangerous weapon such as is usually employed in attack or defense of the person, shall upon conviction thereof be fined not exceeding five hundred dollars or be imprisoned in the county jail not exceeding one year or be imprisoned in the state penitentiary not exceeding one year, or be punished by both fine and imprisonment; provided, this section shall not apply to sheriffs, their deputies, or police officers and other persons whose duty it is to execute process or warrant or make arrests.
The above statutes provide that a law enforcement officer is subject to the licensing requirement and the penalties for carrying a concealed weapon when not on duty.
The term "on duty" is generally defined to mean to either be actually engaged in work or to be charged with present responsibility for such work should the occasion arise. 29A Words and Phrases, p. 249.
Therefore, it is my opinion that a reserve police officer scheduled for duty several evenings each week and subject to call in case of emergency is on duty only when actively involved in law enforcement duties. At all other times said officers are persons subject to the provisions of hereinbefore cited.
Respectfully submitted,
William Janklow
Attorney General
WJJ:LLV:dk
