Imagine a person who carries a firearm legally in South Dakota for personal protection. The state allows constitutional carry and they exercise their Second Amendment rights responsibly. A disagreement breaks out in a parking lot and the argument escalates. The other person later calls police and claims the individual with a firearm threatened them with a gun even though they never touched it.
How legal carry crosses into criminal brandishing
South Dakota law protects your right to carry firearms but prosecutors can charge you with crimes based on how you carry or display that weapon. Under South Dakota law, aggravated assault includes threatening someone with a deadly weapon, which can apply even when you never physically brandish or point your firearm. The line between legal possession and “criminal brandishing” depends heavily on perception and intent:
- Intentional display to threaten: Showing your firearm or drawing attention to it during a confrontation to intimidate or threaten someone crosses into illegal territory.
- Witness interpretation: The other person’s perception matters greatly and their claim that they felt threatened by your actions can form the basis for criminal charges.
- Context of the situation: What you were doing when the gun became visible, your words during the encounter and the overall circumstances all affect how law enforcement views the incident.
- No actual touching required: You do not need to draw the weapon or point it at someone for prosecutors to charge brandishing or menacing crimes.
A gun that sits legally in your holster becomes evidence of a crime when someone claims your behavior made them fear you would use it.
Protecting yourself from false accusations
Your words and actions during any confrontation matter when you carry a firearm. Keep your hands visible and away from your weapon during arguments. Avoid any statements that reference your gun or could be interpreted as threats. Do not adjust your clothing to reveal your firearm or make gestures toward where you carry. Leave the situation quickly rather than continue arguing with someone who seems agitated.
South Dakota values gun rights but the law still punishes using firearms to threaten others. False accusations happen and law-abiding carriers can face serious felony charges based solely on another person’s claim about how they perceived your actions