"It's difficult to say what's going to happen because the claims are all the same, 'Oh my God, children are in rifle range or pistol range. We heard bullets whizzing over our heads,' so it scares everyone involved. It scares the judge, it scares juries and that's why these cases have been successful (in other states) at their true goal - to shut down the range."
Restraining order issued in gun range civil suit case
Bobbie Terry , KYTX 3:55 AM. CST February 15, 2013
TYLER (TYLER MORNING TELEGRAPH) - Attorneys in a civil case between homeowners and owners of a rural gun range presented legal arguments to a panel of judges Thursday who will decide the merits of a temporary injunction that closed the range in June 2012.
The temporary restraining order was signed by 241st District Court Judge Jack Skeen, who determined High Noon Gun Range, which is within 300 yards downrange of more than a dozen homes in Summer Hill Circle on County Road 1108 near Noonday, posed a "clear and present danger" to residents.
On Thursday, the Texas 12th Court of Appeals, a three-judge panel, heard arguments from both sides of the case. No decision was made Thursday regarding the injunction, but a jury trial is expected after a ruling by the panel. No timetable for a decision on the injunction was given.
Greg Porter, the attorney representing High Noon's owner Don Layton, said the appeals court's three-judge panel should side with the range based on current laws. Mike Jones, the residents' attorney, told the court the injunction was justified based on "expert" testimony presented before it was ordered.
The plaintiffs, including David Ball and John Jones, shared their concerns about the range's proximity to their homes in a May 2011 story, but have since refused comment. Layton said he believes the law is on the range's side and that he is ready for a final decision.
More than 50 homes dot the countryside within 1,000 yards of the range. Ball's home is 700 feet downrange from rifle targets.
The subdivision was developed years ago before the range opened in January 2011.
In July 2011, the Smith County Appraisal District reduced values for more than a dozen properties near the range by 30 percent because of its expected effect on home sales in the area.
In Texas, civil and even criminal law sides with gun range owners.
"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.
Cities can regulate noise within its limits, but the range lies within the unincorporated area of the county, outside city jurisdictions where regulation is very limited.
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 National Rifle Association 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" and was therefore unconstitutional.
Houston attorney Charles Cotton, who represents gun ranges in similar pending litigation and is a National Rifle Association board member and helped craft legislation known as the Shooting Range Protection Act that became law Sept. 1, said gun ranges have the law on their side but that "nuisance" lawsuits are becoming more prevalent because of suburban sprawl.
Cotton said the act was passed to solidify gun ranges' right to operate without facing frivolous litigation based on "nuisance," such as noise and unsubstantiated instances of bullets escaping. He said without "blood" or confirmed bullet strikes that can be linked to the range, it should be difficult to stop a range from operating.
He said one tactic used by developers or property owners with "deep pockets" against ranges is to bury them in mounting litigation, which drains their financial ability to fight.