PIERRE, S.D. (KELO) — State senators must decide in the coming days whether South Dakota’s 19th-century laws permitting people to use of force in self-defense are clear or should be made stronger.
The state House of Representatives voted 61-7 Thursday night for HB 1212 to strengthen them. Every Republican in the chamber backed the legislation, while every Democrat there opposed it.
The legislation is patterned after Florida law, according to sponsor Kevin Jensen. He said it’s “not really” a ‘stand your ground’ measure. The six-page bill however uses the specific phrase “has the right to stand his or her ground” in several places.
“If you look at the bill carefully, this is not a gun bill. The word ‘gun, firearm, pistol’ doesn’t even exist in the bill. Why? Because self-defense can be with anything. You can defend yourself with a knife, a baseball bat, a tire iron, and your fists, when it comes down to this use of force, and that’s what the whole thing was about, was clarifying use of force,” Jensen said.
He added, “We have certain rights as individuals. We have to be able to defend ourselves up to and equal to the force being displayed against us.” He said a photograph of a Missouri couple showed the difference between legally displaying a weapon, as the man held his AR-15 at his side, or the illegal act of brandishing a weapon, which the woman did as she pointed hers in the direction of protesters.
The legislation would rewrite the laws and delete archaic references to servants and mistresses. Jensen said it also would expand the definition of a dwelling to cover any portion of a person’s home including an attached garage.
South Dakota’s self-defense laws currently say there is no duty to retreat. “No duty to retreat means stand your ground,” Jensen said.
The common perception is people should shoot once they’ve pulled their gun in self-defense, he said. “What this bill does is take us to that middle ground and defines it, so that if you use excessive force, you are going to be arrested, but if you use equal-to force to end the situation, that’s allowable by law, but that gray area is the difference between showing a weapon to defray a situation or actually having to use it. And this clarifies that.”
South Dakota law allows any person who’s not a criminal to carry a concealed firearm. Democrat leader Jamie Smith said Jensen’s legislation would make South Dakota a more dangerous place because many people who carry concealed weapons haven’t received training in the law.
“I have been told this isn’t a stand-your-ground law but the words are right there, and it does imply it’s a stand-your-ground law. That law may have been worked on by you for a long time getting that Florida law to fit with South Dakota law but it was invented in Florida. They put these in in in 2005. And so the stand-your-ground laws actually give people license to kill,” Smith said.
“It allows those who shoot others to obtain immunity, even if they started the confrontation themselves and it could have been de-escalated without the gun. Studies have been done to show the efforts of the Florida law and the studies are not good,” Smith said, citing various negative statistics. “I’m not convinced this law solves a problem. I also think it could lead to increased homicide rates here in the state of South Dakota, and unfortunately I don’t want to provide safe harbor as an unintended consequence.”
Drew Dennert responded with statistics that he said showed the numbers of murders in Florida rose during the past 15 years roughly proportionate to the population’s increase while violent crimes per 100,000 people dropped roughly by half.
John Wiik is lead sponsor in the Senate. The National Rifle Association promotes ‘stand your ground’ legislation. Brian Gosch, the former House Republican leader and House speaker, is a registered NRA lobbyist for South Dakota. The first bill that Governor Kristi Noem signed in 2019 was NRA-backed legislation lifting South Dakota’s requirement of a state permit for concealed carry of firearms.
At the stand-your-ground bill’s House committee hearing Wednesday, Jensen was the only one to speak for it, while the organization representing South Dakota’s county prosecutors went on record opposing one section. Several women from Sioux Falls, Brandon and Rapid City spoke against the overall concept.
More than 20 states have versions of a ‘stand your ground’ law, according to the National Conference of State Legislatures. A national analysis concluded “stand-your-ground laws are intended to reduce barriers for self-defense with the aim of further deterring criminal victimization.”
“This bill is nothing new,” Jensen said, citing his law enforcement certification since 1983 and his status as an NRA-certified pistol instructor for 15 years. He said more than 2,000 people have come through his class.
The five different statutes now in law in South Dakota have been in place since before 1900, Jensen said. “Our current laws are very confusing, vague and don’t really justify certain actions by people.” Law enforcement currently decides whether a person’s display of a weapon was offensive, which is illegal, or defensive, which is legal.
“Unfortunately in South Dakota we have just not made it clear yet,” Jensen said. “The court should be the one to decide that. In law we don’t really address it properly.” He said the state attorney general’s office reviewed the legislation and was neutral, as was the sheriffs association. The governor’s office didn’t get back to him, he said.
Paul Bachand, representing the South Dakota State’s Attorneys Association, objected to the legislation’s granting the person at the scene the right to claim the violent action was justified in countering the attack. He said a judge wouldn’t be present when the act occurred.
Jensen said the language was part of the Florida law. “If that’s the only objection they have, I feel pretty confident we wrote a solid bill,” Jensen said.
The House State Affairs Committee voted 10-1 along Republican/Democrat lines for approval. The sentences that drew the county prosecutors’ opposition were removed on the House floor. “It wasn’t that important,” Jensen said.
Ryan Cwach argued that drunken people who walked into the wrong apartments would get shot. Jensen said the shooters probably would be arrested and have to make their defense in a courtroom. “You don’t just get to shoot for free,” Jensen said. “I’m sorry, that’s not how the real world works, you’re still probably going to be charged, you’re going to be arrested.”
Shootings have been reduced in Florida since passage of the ‘stand-your-ground’ laws, Jensen said. “There’s no doubt about that. That’s a fact.”