CHAPTER 33-9
ACTIVE SERVICE OF NATIONAL GUARD
33-9-1 Authority of Governor to order active service--Application of other public officials.
33-9-2 Absence of Governor--Authority of National Guard commanders.
33-9-3 Delivery and communication of active service order--Procedure.
33-9-4 Repealed by SL 2012, ch 173, §§ 3 to 5.
33-9-7 Accessories to disobedience--Misdemeanor.
33-9-8 Response to disasters--Suppression of riots--Duty to obey civilian officials.
33-9-9 Injuries in course of riot suppression--Members and magistrates exonerated--Rioters held to answer.
33-9-10 Immunity of commanding officers and members of military forces.
33-9-11 Compensation and expenses during active service.
33-9-12 National Guard Mutual Assistance Compact--Enactment--Text of compact.
33-9-13 State service periods--Rights and benefits.
33-9-14 Claims--Payment.
33-9-15 National Guard Mutual Assistance Counter-drug Activities Compact--Enactment--Text of Compact.
33-9-1. Authority of Governor to order active service--Application of other public officials.
In case of war, insurrection, rebellion, riot, invasion, resistance to the execution of the law of this state or of the United States, or in the event of public disaster or upon application of any marshal of the United States, or the mayor of any first or second class municipality or any sheriff in this state, the Governor may order into active service all or any portion of the national guard.
Source: SL 1887, ch 100, §§ 43, 44; CL 1887, §§ 1959, 1960; SL 1893, ch 117, § 14; SL 1901, ch 176, § 8; RPolC 1903, § 2497; SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 1992, ch 60, § 2.
33-9-2. Absence of Governor--Authority of National Guard commanders.
If the Governor is absent or cannot be immediately communicated with, any civil officer named in § 33-9-1 may, if the civil officer deems the occasion sufficiently urgent, apply electronically, telephonically, or in writing to the commanding officer of any unit of the National Guard, who may, upon approval by the adjutant general, if the danger is great and imminent, order out of the unit such South Dakota National Guard members as the commanding officer deems necessary to the assistance of the civil officer.
Source: SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 2007, ch 187, § 78.
33-9-3. Delivery and communication of active service order--Procedure.
Any order pursuant to § 33-9-1 or 33-9-2 shall be delivered to the commanding officer and immediately communicated by the commanding officer to each subordinate officer. Each company commander receiving the order shall immediately communicate the substance of the order to each member of the company being called to duty. If any such member cannot be found, a notice in writing containing the substance of the order shall be left at the last and usual place of residence of the member with some person of suitable age and discretion, to whom its contents shall be explained.
Source: SL 1903, ch 185, § 27; SL 1917, ch 297, § 37; RC 1919, § 10597; SDC 1939, § 41.0149; SL 1951, ch 206; SL 2007, ch 187, § 79.
33-9-4 to 33-9-6. Repealed by SL 2012, ch 173, §§ 3 to 5.
33-9-7. Accessories to disobedience--Misdemeanor.
Any person who advises or endeavors to persuade any officer or enlisted member of the National Guard to refuse or neglect to appear at such place or obey such orders is guilty of a Class 2 misdemeanor.
Source: SL 1903, ch 185, § 28; SL 1917, ch 297, § 38; RC 1919, § 10598; SDC 1939, § 41.9904; SL 1976, ch 158, § 43-6; SL 2023, ch 109, § 9.
33-9-8. Response to disasters--Suppression of riots--Duty to obey civilian officials.
An armed force may be called out to respond to public disaster resulting from flood, conflagration, or tornado, or for the purpose of suppressing any tumult or riot, or for the purpose of dispersing any group of persons that is acting together by force with intent to commit any felony or to offer violence to persons or property, or that is acting with intent by force or violence to resist or oppose the execution of the laws of this state. Upon arrival at the place of such unlawful, riotous, or tumultuous assembly, the armed force shall obey any orders by the Governor for suppressing the riot or tumult or for dispersing and arresting all persons who are committing any such offenses. The armed force shall also obey any such orders from any judge of a court of record, or from the sheriff of the county, and also any further orders for such purposes from any two of the magistrates or other officers mentioned in this section.
Source: SL 1917, ch 297, § 71; RC 1919, § 10631; SDC 1939, § 41.0179; SL 2007, ch 187, § 83.
33-9-9. Injuries in course of riot suppression--Members and magistrates exonerated--Rioters held to answer.
If the efforts made pursuant to § 33-9-8 by, or at the direction of, any of the magistrates or officers mentioned in § 33-9-8 to disperse any unlawful, riotous, or tumultuous assembly, or to seize and secure the persons who have assembled and have refused to disperse, though the number remaining may be less than twelve, cause any such person or other persons present as spectators or otherwise to be killed or wounded, such magistrates and officers, and all persons acting by their order and under their direction, are held guiltless and fully justified in law. If any of such magistrates or officers or any persons acting by their order or under their direction are killed or wounded, any person who is unlawfully, riotously, and tumultuously assembled is answerable for the death or injury in a court of law.
Source: SL 1917, ch 297, § 71; RC 1919, § 10631; SDC 1939, § 41.0179; SL 2007, ch 187, § 84.
33-9-10. Immunity of commanding officers and members of military forces.
The commanding officer and members of any of the military forces engaged in the suppression of an insurrection, the dispersion of a mob, or the enforcement of the laws, have the same immunity as law enforcement officers.
Source: SDC 1939, § 41.0179; SL 2007, ch 187, § 85.
33-9-11. Compensation and expenses during active service.
In active service pursuant to §§ 33-9-1 to 33-9-3, inclusive, the compensation and expenses of the national guard and claims of the members thereof for injury or illness incurred in line of duty, shall be paid out of any funds in the state treasury not otherwise appropriated.
Source: SDC 1939, § 41.0149; SL 1951, ch 206.
33-9-12. National Guard Mutual Assistance Compact--Enactment--Text of compact.
The National Guard Mutual Assistance Compact is hereby enacted into law and entered into by the State of South Dakota with all other states legally joining therein, in the form substantially as follows:
ARTICLE I. PURPOSE
The purposes of this compact are to:
1. Provide for mutual aid among the party state in the utilization of the national guard to cope with emergencies.
2. Permit and encourage a high degree of flexibility in the deployment of national guard forces in interest of efficiency.
3. Maximize the effectiveness of the national guard in those situations which call for its utilization under the compact.
4. Provide protection for the rights of national guard personnel when serving in other states on emergency duty.
ARTICLE II. ENTRY INTO FORCE AND WITHDRAWAL
(a) This compact shall enter into force when enacted into law by any two states. Thereafter, this compact shall become effective as to any other state upon its enactment, thereof.
(b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after the Governor of the withdrawing state has given notice in writing of such withdrawal to the Governors of all party states.
ARTICLE III. MUTUAL AID
(a) As used in this article:
1. "Emergency" means an occurrence or condition, temporary in nature, in which police and other public safety officials and locally available national guard forces are, or may reasonably be expected to be, unable to cope with substantial and imminent danger to the public safety.
2. "Requesting state" means the state whose Governor requests assistance in coping with an emergency.
3. "Responding state" means the state furnishing aid, or requested to furnish aid.
(b) Upon request of the Governor of a party state for assistance in an emergency, the Governor of a responding state shall have authority under this compact to send without the borders of his state and place under the temporary command of the appropriate national guard or other military authorities of the requesting state all or any part of the national guard forces of his state as he may deem necessary, and the exercise of his discretion in this regard shall be conclusive.
(c) The Governor of a party state may withhold the national guard forces of his state from such use and recall any forces or part or member thereof previously deployed in a requesting state.
(d) Whenever national guard forces of any party state are engaged in another state carrying out the purposes of this compact, the members thereof so engaged shall have the same powers, duties, rights, privileges and immunities as members of national guard forces in such other state. The requesting state shall save members of the national guard forces of responding states harmless from civil liability for acts or omissions in good faith which occur in the performance of their duty while engaged in carrying out the purposes of this compact, whether the responding forces are serving the requesting state within its borders or are in transit to or from such service.
(e) Subject to the provisions of paragraphs (f), (g), and (h) of this article, all liability that may arise under the laws of the requesting state, the responding state, or a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.
(f) Any responding state rendering aid pursuant to this compact shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of the materials, transportation and maintenance of national guard personnel and equipment incurred in connection with such request: Provided, that nothing herein contained shall prevent any responding state from assuming such loss, damage, expense, or other cost.
(g) Each party state shall provide, in the same amounts and manner as if they were on duty within their state, for the pay and allowances of the personnel of its national guard units while engaged without the state pursuant to this compact and while going to and returning from such duty pursuant to this compact. Such pay and allowances shall be deemed items of expense reimbursable under paragraph (f) by the requesting state.
(h) Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its national guard forces in case such members sustain injuries or are killed within their own state, shall provide for the payment of compensation and death benefits in the same manner and on the same terms in case such members sustain injury or are killed while rendering aid pursuant to this compact. Such compensation and death benefits shall be deemed items of expense reimbursable pursuant to paragraph (f) of this article.
ARTICLE IV. DELEGATION
Nothing in this compact shall be construed to prevent the Governor of a party state from delegating any of his responsibilities or authority respecting the national guard, provided that such delegation is otherwise in accordance with law. For purposes of this compact, however, the Governor shall not delegate the power to request assistance from another state.
ARTICLE V. LIMITATIONS
Nothing in this compact shall:
1. Expand or add to the functions of the national guard, except with respect to the jurisdictions within which such functions may be performed.
2. Authorize or permit national guard units to be placed under the field command of any person not having the military or national guard rank or status required by law for the field command position in question.
ARTICLE VI. CONSTRUCTION AND SEVERABILITY
This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the Constitution of any state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the Constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.
Source: SL 1969, ch 171, §§ 1, 4; SL 1994, ch 268.
33-9-13. State service periods--Rights and benefits.
In accordance with paragraph (h) of Article III of the compact members of the National Guard Forces of South Dakota shall be deemed to be in state service at all times when engaged pursuant to this compact, and shall be entitled to all rights and benefits provided by the State of South Dakota.
Source: SL 1969, ch 171, § 3.
33-9-14. Claims--Payment.
Upon presentation of a claim therefor by an appropriate authority of a state whose national guard forces have aided the State of South Dakota pursuant to the compact, any liability of South Dakota pursuant to paragraph (f) of Article III of the compact shall be paid out of the general fund of South Dakota.
Source: SL 1969, ch 171, § 2.
33-9-15. National Guard Mutual Assistance Counter-drug Activities Compact--Enactment--Text of Compact.
The National Guard Mutual Assistance Counter-drug Activities Compact is hereby enacted into law and entered into by the State of South Dakota with all other states legally joining therein, in form substantially as follows:
ARTICLE I. PURPOSE
The purposes of this compact are:
(A) To provide for mutual assistance and support among the party states in the utilization of the national guard in drug interdiction, counter-drug, and demand reduction activities;
(B) To permit the national guard of this state to enter into mutual assistance and support agreements, on the basis of need, with one or more law enforcement agencies operating within this state for activities within this state, or with a national guard of one or more other states, whether said activities are within or without this state, in order to facilitate and coordinate efficient, cooperative enforcement efforts directed toward drug interdiction, counter-drug activities, and demand reduction;
(C) To permit the national guard of this state to act as a receiving and responding state as defined within this compact and to ensure the prompt and effective delivery of national guard personnel, assets, and service to agencies or areas that are in need of increased support and presence;
(D) To permit and encourage a high degree of flexibility in the deployment of national guard forces in the interest of efficiency;
(E) To maximize the effectiveness of the national guard in those situations which call for its utilization under this compact;
(F) To provide protection for the rights of national guard personnel when performing duties in other states in counter-drug activities; and
(G) To ensure uniformity of state laws in the area of national guard involvement in interstate counter-drug activities by incorporating said uniform laws within the compact.
ARTICLE II. ENTRY INTO FORCE AND WITHDRAWAL
(A) This compact shall go into force when enacted into law by any two states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof.
(B) Any party state may withdraw from this compact by enacting a statute repealing the compact, but no such withdrawal may take effect until one year after the Governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states.
ARTICLE III. MUTUAL ASSISTANCE AND SUPPORT
(A) As used in this compact, the following terms mean:
(1) "Drug interdiction and counter-drug activities," the use of national guard personnel, while not in federal service, in any law enforcement support activities that are intended to reduce the supply or use of illegal drugs in the United States. These activities include, but are not limited to:
(a) Providing information obtained during either the normal course of military training or operations or during counter-drug activities to federal, state, or local law enforcement officials that may be relevant to a violation of any federal or state law within the jurisdiction of such officials;
(b) Making available any equipment (including associated supplies or spare parts), base facilities or research facilities of the national guard to any federal, state, or local civilian law enforcement official for law enforcement purposes, in accordance with other applicable law or regulation;
(c) Providing available national guard personnel to train federal, state, or local civilian law enforcement in the operation and maintenance of equipment, including equipment made available above, in accordance with other applicable law;
(d) Providing available national guard personnel to operate and maintain equipment provided to federal, state, or local law enforcement officials pursuant to activities defined and referred to in this compact;
(e) Operating and maintaining equipment and facilities of the national guard or law enforcement agencies used for the purposes of drug interdiction and counter-drug activities;
(f) Providing available national guard personnel to operate equipment for the detection, monitoring, and communication of the movement of air, land, and sea traffic, to facilitate communications in connection with law enforcement programs, to provide transportation for civilian law enforcement personnel and to operate bases of operations for civilian law enforcement personnel;
(g) Providing available national guard personnel, equipment, and support for administrative, interpretive, analytic, or other purposes; and
(h) Providing available national guard personnel and equipment to aid federal, state, and local officials and agencies otherwise involved in the prosecution or incarceration of individuals processed within the criminal justice system who have been arrested for criminal acts involving the use, distribution, or transportation of controlled substances as defined in 21 U.S.C. § 801 et seq. as in effect on July 1, 1993, or otherwise by law, in accordance with other applicable law;
(2) "Demand reduction," providing available national guard personnel, equipment, support, and coordination to federal, state, local, and civic organizations, institutions, and agencies for the purposes of the prevention of drug abuse and the reduction in the demand for illegal drugs;
(3) "Requesting state," a state whose governor requested assistance in the area of counter-drug activities;
(4) "Responding state," a state furnishing assistance, or requested to furnish assistance, in the area of counter-drug activities;
(5) "Law enforcement agency," a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customer, or controlled substances laws;
(6) "Official," an appointed, elected, designated or otherwise duly selected representative or an agency, institution, or organization authorized to conduct those activities for which support is requested;
(7) "Mutual assistance and support agreement" or "agreement," an agreement between the national guard of this state and one or more law enforcement agencies or between the national guard of this state and the national guard of one or more other states, consistent with the purposes of the compact;
(8) "Party state," a state that has lawfully enacted this compact; and
(9) "State," any of the several states of the United States, the District of Columbia, the commonwealth of Puerto Rico, or a territory or possession of the United States;
(B) Upon the request of a governor of a party state for assistance in the area of drug interdiction, counter-drug, and demand reduction activities, the Governor has authority under this compact to send without the border of this state and place under the temporary operational control of the appropriate national guard or other military authorities of the requesting state, for the purpose of providing such requested assistance, all or any part of the national guard forces of this state as he may deem necessary, and the exercise of his discretion in this regard shall be conclusive.
(C) The Governor may, within his discretion, withhold the national guard forces of this state from such use and recall any forces or part or member thereof previously deployed in a requesting state.
(D) The national guard of this state is hereby authorized to engage in counter-drug activities and demand reduction.
(E) The adjutant general of this state, in order to further the purposes of this compact, may enter into a mutual assistance and support agreement with one or more law enforcement agencies operating within this state, including federal law enforcement agencies operating in state, or with the national guard or one or more other party states to provide personnel, assets, and services in the area of counter-drug activities and demand reduction provided that any party to the agreement is not specifically prohibited by law to perform said activities.
(F) The agreement must set forth the powers, rights, and obligations of the parties to the agreement, where applicable, as follows:
(1) Its duration;
(2) The organization, composition, and nature of any separate legal entity created thereby;
(3) The purpose of the agreement;
(4) The manner of financing the agreement and establishing and maintaining its budget;
(5) The method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination;
(6) Provision for administering the agreement, which may include creation of a joint board responsible for such administration;
(7) The manner of acquiring, holding, and disposing of real and personal property used pursuant to the agreement, if necessary;
(8) The minimum standards for national guard personnel implementing the provisions of the agreement;
(9) The minimum insurance required of each party to the agreement, if necessary;
(10) The chain of command or delegation of authority to be followed by national guard personnel acting under the provisions of the agreement;
(11) The duties and authority that the national guard personnel of each party state may exercise; and
(12) Any other necessary and proper matters.
(G) As a condition precedent to an agreement becoming effective under this part, the agreement shall be submitted to and receive the approval of the Office of the Attorney General. The attorney general may delegate his approval authority to the appropriate attorney for the national guard subject to those conditions which he deems appropriate. Said delegation shall be in writing and subject to the following:
(1) The attorney general, or his agent in the national guard as stated above, shall approve an agreement submitted to him under this part unless he finds that it is not in proper form, does not meet the requirements set forth in this part, or otherwise does not conform to the laws of South Dakota. If the attorney general disapproves an agreement, he shall provide a written explanation to the adjutant general of the national guard; and
(2) If the attorney general, or his authorized agent as stated above, does not disapprove an agreement within thirty days after its submission to him, it shall be deemed approved by him.
(H) Whenever national guard forces of any party state are engaged in the performance of duties in the area of drug interdiction, counter-drug, and demand reduction activities pursuant to orders, they shall not be held personally liable for any acts or omissions which occur during the performance of such duty.
ARTICLE IV. RESPONSIBILITIES
(A) Nothing in this compact may be construed as a waiver of any benefits, privileges, immunities, or rights otherwise provided for national guard personnel performing duty pursuant to Title 32 of the United States Code, nor shall anything in this compact be construed as a waiver of coverage provided for under the Federal Tort Claims Act. In the event that national guard personnel performing counter-drug activities do not receive rights, benefits, privileges, and immunities otherwise provided for national guard personnel as stated herein, the following provisions apply:
(1) Whenever national guard forces of any responding state are engaged in another state in carrying out the purposes of this compact, the members thereof so engaged shall have the same power, duties, rights, privileges, and immunities as members of national guard forces of the requesting state. The requesting state shall save and hold members of the national guard forces of this responding state harmless from civil liability, except as otherwise provided herein, for acts or omissions which occur in the performance of those member's duty while engaged in carrying out the purposes of this compact, whether such responding forces are serving the requesting state within the borders of the responding state or are attached to the requesting state for purposes of operational control;
(2) Subject to the provisions of paragraphs (3), (4), and (5) of this article, all liability that may arise under the laws of the requesting state of this responding state on account of or in connection with a request for assistance or support, shall be assumed and borne by the requesting state;
(3) If as a responding state, this state is rendering aid or assistance pursuant to this compact, it shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of, any equipment answering a request for aid, and for the cost of the materials, transportation, and maintenance of national guard personnel and equipment incurred in connection with such request, provided that nothing herein constrained shall prevent any responding state from assuming such loss, damage, expense, or other cost;
(4) Unless there is a written agreement to the contrary, each party shall provide, in the same amounts and manner as if they were on duty within their state, for pay and allowances of the personnel of its national guard units while engaged without the state pursuant to this compact and while going to and returning from such duty pursuant to this compact; and
(5) Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its national guard forces if such members sustain injuries or are killed within their own state, providing such requested assistance, shall provide for their payment of compensation and death benefits in the same manner and on the same terms in the event such members sustain injury or are killed while rendering assistance or support pursuant to this compact. Such benefits and compensation shall be deemed items of expense reimbursable pursuant to paragraph 3 of this article.
(B) Officer and enlisted personnel of the national guard performing duties subject to proper orders pursuant to this compact shall be subject to and governed by the provisions of their home state code of military justice whether they are performing duties within or without their home state. If any national guard member commits or is suspected of committing a criminal offense while performing duties pursuant to this compact without his home state, he may be returned immediately to his home state and he may be subject to disciplinary action to be taken. However, nothing in this section shall abrogate the general criminal jurisdiction of the state in which the offense occurred.
ARTICLE V. DELEGATION
Nothing in this compact shall be construed to prevent the Governor from delegating any of his responsibilities or authority respecting the national guard, providing that such delegation is otherwise in accordance with law. For purposes of this compact, however, the Governor shall not delegate the power to request assistance from another state.
ARTICLE VI. LIMITATIONS
Nothing in this compact may:
(1) Authorize or permit national guard units or personnel to be placed under the operational control of any person not having the national guard rank or status required by law for the command in question; or
(2) Deprive a properly convened court of jurisdiction over an offense of a defendant merely because of the fact that the national guard, while performing duties pursuant to this compact, was utilized in achieving an arrest or indictment.
ARTICLE VII. CONSTRUCTION AND SEVERABILITY
This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the Constitution of the United States or of any state or under any circumstance, is deemed invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance may not be affected thereby. If this compact is held to be contrary to the Constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.
Source: SL 1994, ch 269.
