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.
"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."
Smith County Courthouse Tyler, Texas
