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Sunday, October 30, 2011

Courts - "Trial reveals distrust between gun club, county"

Tacoma Washington is the site of this very long story from Oct. 29, published in the Kitsap Sun, interesting because it cites an Indiana decision. Some quotes:

TACOMA — On the surface, the legal battle between Kitsap County and the Kitsap Rifle and Revolver Club appeared to be a question of whether the club has violated rules related to public safety and environmental protection.

Stray bullets striking homes in Eldorado Hills and Whisper Ridge to the northeast received the most attention, though the source of the flying projectiles remains in dispute.

Underlying the drama, however, feelings of frustration, mistrust and betrayal have kept the parties from finding common ground.

At its simplest level, said Brian Chenoweth, attorney for the gun club, the lawsuit is about "the county's desire to take away the right of the club to exist as it has for 85 years."

County officials contend that it was the gun club that chose to expand its facilities, extend its hours of operation, allow more powerful weapons and bring in commercial operations. The resulting noise, flying bullets and other changes created a public nuisance, extinguishing the club's "grandfathered" status and requiring the county to take action, according to pleadings by Neil Wachter, the deputy prosecutor representing the county.

Such modernization efforts have not changed the nature of the gun range, insisted Chenoweth. Such activities are considered "intensification." They do not require county review, so long as the range does not expand outside its historical eight-acre footprint. * * *

Kitsap County called seven witnesses who talked about bullets striking their homes. In at least three cases, expert witnesses examined the types of bullets and drew "pie-shaped" wedges on maps to define the area from which the bullets may have originated.

The county's experts drew smaller wedges than did the club's. For the most part, the gun range was located within the area from which the bullets originated — though one bullet could not have gone that far unless the cartridge was "uploaded" with an extra charge.

But just because the gun range was a possible source for the bullets did not mean that's where the bullets originated, and it is not enough proof for legal action, the club's lawyers argued. In a similar case in Indiana, the courts refused to take action against a gun range because people were known to shoot outside the range and the source of the errant bullets was inconclusive.

ILB: What Indiana case is this? It is not identified in the story, but looks to be the Sept. 15, 2010 Court of Appeals opinion in Woodsmall v. LOST CREEK TOWNSHIP CONSERVATION CLUB, INC. Here is a quote:
The Homeowners vigorously contend that they established the presence of errant bullets on some of the Homeowners' properties and thus the trial court could not have reached a conclusion other than that an unsafe nuisance was being maintained by Lost Creek. However, the evidence does not definitively establish that Lost Creek is a source of a hazard to the Homeowners. First, there is evidence from which a factfinder could infer that shooting in the heavily wooded area near the Homeowners is not limited to Lost Creek members and visitors. Phyllis Woodsmall testified that "a couple times a year" she heard shooting from an area other than Lost Creek. (Tr. 58.) Lost Creek President Danny Favor testified to his belief that a nearby plumbers and steamfitters organization also engaged in trap and skeet shooting in their park area.

Second, the trial court heard expert evidence that, should a bullet escape the confines of the shooting range, it would be at a height and trajectory such that it posed no danger upon falling to the ground. Indeed, none of the Homeowners testified to property damage or physical injury. One of the Homeowners had heard a "ping" and suspected a bullet, but she and her husband were unable to locate a place on the house that appeared to have been struck by a bullet. (Tr. 198.) Another of the Homeowners reported hearing a shot, and four or five days later her husband found a spent bullet lying on the back deck. Its origin was not determined.

Posted by Marcia Oddi on October 30, 2011 12:41 PM
Posted to Courts in general