Appeals court confirms gun range injunction

EAST TEXAS (TYLER MORNING TELEGRAPH) - The owners of High Noon Shooting Range said they will weigh their options after the 12th Court of Appeals affirmed a temporary injunction, setting the stage for a jury trial to determine its fate.

The three justice panel overruled two of five issues within the owners' appeal and backed 241st District Court Judge Jack Skeen's June 2012 issuance of the restraining order when he concluded the range posed a "grave risk" to residents near the range.

The opinion states a jury trial should settle whether Texas laws governing shooting ranges in unincorporated areas are constitutional and enforceable and whether the merits of the case favor the homeowners or the gun range.
No trial date has been set.

Owner Don Layton said his business partner have to decide whether to continue the legal fight amid mounting legal costs. He has said the intention of the suit by the homeowners was to stall and "bleed us dry." He said the evidence supporting Judge Skeen's initial decision is not based on facts.

"It's all hearsay," he said. "They say they had a witness who heard a bullet wiz by or saw evidence of bullet strikes but they haven't provided a shred of evidence supporting that claim."

Charles Clark, the attorney representing Layton and co-owner Karl Artmire, said his clients have not decided whether to pursue the jury trial. He said a successful jury trial by his clients would likely be appealed and mean continued expense.

"We've laid out what they are faced with and are just waiting for them to make a decision," he said. "Either party has the right to appeal, so we could be going right back down the same road."

Clark said the National Rifle Association has been "very helpful" both financially and with professional assistance. A copy of the court's opinion has been forwarded to the NRA, he said.

Allen Gardner, of Potter-Minton Law Firm, who represents the homeowners, said he does not comment on pending litigation.

There are no state laws that regulate shooting ranges in unincorporated areas of counties.

"A government official may not seek civil or criminal penalty against sport shooting ranges, businesses, private clubs or associations operating in an area where firearms can be used for recreational, target or self-defense, if no applicable noise ordinances, order or rules exist," according to Texas Local Government Code.

According to state law there are no restrictions on range construction beyond the state's Health and Safety Code, which states, "An owner of an outdoor shooting range shall construct and maintain the range according to standards that are at least as stringent as the standards printed in the NRA range manual."

But a Texas Attorney General's opinion regarding the Health and Safety Code statute determined it was "an invalid attempt to confer legislative authority on a private entity," meaning a private entity (the NRA in this case) cannot guide state law, and was therefore unconstitutional.

Judge Skeen based much of his decision to implement a temporary injunction on homeowners' concerns and "range experts" assessment of the facility.

Testimony and observations by two range experts "provide further support for the conclusion that the range presents a clear and present danger to the community," the Judge Skeen's injunction read.

In a previous interview, Houston attorney Charles Cotton, who represents gun ranges in similar pending litigation and is a NRA board member and helped craft legislation known as the Texas Shooting Range Protection Act that became law Sept. 1, 2012, said there are questions surrounding the validity of one of the "experts" knowledge. He said a tactic used by developers and property owners with "deep pockets" typically includes filing nuisance suits to drain range owners resources and force closure.

The Protection Act was designed to prevent nuisance lawsuits from proceeding without evidence of bullets leaving the range, he said. The lawsuit filed against the range was filed days before the law took effect.

Layton said NRA range experts visited the site a month after the suit was filed and made recommendations. He said those recommendations were followed and that the range is safe. Before the injunction, around 250 members frequented the range to fire weapons ranging from pistols to semi-automatic rifles, especially on blue-bird days, Layton said.

Most of the plaintiffs live in Summer Hill Circle, an affluent subdivision on County Road 1108. The subdivision's southwestern border starts 1,100 feet northeast from the range's 200-yard targets.

David Ball lives 700 feet northeast of the range. His house sits atop a hill 400 feet north and 400 feet east of the range. He sees the range as a noise nuisance and a threat to his children's safety.


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