Posted on 05/26/2009 9:27:18 AM PDT by SwinneySwitch
Family worries about neighbors’ target shooting
LIVE OAK(County) — Eight-year-old Mikayla Molohon likes playing on her swing set in the breezy Lake Meadows Subdivision near the banks of the Nueces River.
Until the shooting starts.
Then her grandparents, Sparkey and Jan Osborn, call “Mika” inside to watch television or play with her toys. The Osborns’ two Doberman pinschers become anxious, and Sparkey Osborn’s occasional migraines pound worse with the shooting.
Mika and her sister, Colleen, 13, aren’t allowed in the front yard at all because the Osborns are never sure when the guns might go off.
Two of their neighbors, the Herradas across the street and the Valentines down the road, have dirt berms on their property and regularly practice shooting their guns, as often as once a week during competition training, Jan Osborn said. The Osborns worry that a ricochet or bad shot could hit their home.
“I usually stay back here by myself and I don’t get into my neighbor’s business,” Sparkey Osborn said recently on his back porch overlooking the river. “But I don’t want to put my family in danger.”
After several years of worrying, and spurred by the story of a 7-year-old Hays County boy who died from a stray bullet, the Osborns have sued both neighbors and are asking for stricter gun laws in Live Oak County to bar shooting in residential areas.
Herman Herrada and John Valentine say in court filings they have never missed their berms and the dirt piles are free from any material that could cause a ricochet. They say their lines of fire extend over open fields — away from the Osborn residence — and that the suit amounts to harassment.
The Osborns are asking for a permanent injunction to stop both men from firing on their property. The argument hinges on the subdivision’s deed restrictions, which bar nuisance activities.
The Osborns lost a request for a temporary injunction in November and a hearing is set for June 5 on the request for permanent injunction. Neighbors have lined up on each side of the dispute, with several expected to testify that Valentine and Herrada are safe shooters, and another handful filing statements with the court that shooting bothers them but they wish to remain anonymous to keep a harmonious relationship.
Both the Osborns say they are not against guns but what they call irresponsible gun use. Jan Osborn is a member of the National Rifle Association, and Sparkey Osborn has used a gun to defend his home. This is not a constitutional issue to them.
“What you can do when you have no neighbors is different from what you can do when you live in a community,” Jan Osborn said.
The beginning
The Osborns moved from San Antonio to Port Aransas in 1988 to escape another kind of threat. Sparkey Osborn had shot an intruder in their home, and the reputed gang member survived and vowed revenge. Osborn said he lived in fear of a drive-by, and the incident left him with post-traumatic stress disorder.
Then in late 2002 the couple moved from Port Aransas to Live Oak County to be nearer their daughter and grandchildren. Herrada and Valentine already lived in the subdivision and had constructed their shooting berms in 1988 and 1996, respectively, according to the suit.
“When we first moved there, we didn’t realize the dirt pile across the street from us was a shooting berm,” Jan Osborn said. “We just thought it was a pile of dirt to use for filling in holes.”
Valentine and Herrada practice shooting at the berms at competition distances of 7, 15 and 25 yards. Valentine is a certified instructor in the use of explosives and firearms at Del Mar College, Texas A&M University-Corpus Christi and the Corpus Christi Police Academy. Herrada is a retired Department of Corrections officer who served 23 years in the Air Force.
Sparkey Osborn, a former construction worker who suffers from chronic back pain and migraine headaches, likes to relax on his back patio in one of the few comfortable chairs he can find. But the shooting makes him anxious and forces him inside.
“It’s turned into worse than waiting for a drive-by,” Osborn said, turning to point to his front window. “The ricochet could come right in the window there where my grandchildren watch TV.”
The Osborns say they were determined to be good neighbors. They put up with the shooting for years. Then a bullet from a third neighbor, who was shooting at a tree stump, ended up in the trailer next door to the Osborns, nearly in the line of fire of their grandchildren’s swing set.
Though that neighbor agreed to stop shooting and has since moved, the stray bullet heightened the Osborns’ anxiety.
So when the couple heard in April 2007 that a 7-year-old boy from Hays County was killed by a stray bullet while playing on his trampoline, they had an epiphany.
“I thought, ‘It’s time for this to stop,’ ” Sparkey Osborn said.
The law
The Osborns called the Live Oak County Sheriff’s Office to see what could be done about the shooting. Though at least two deputies have come out, the couple are frustrated that no citations have been given.
Sheriff Larry Busby is expected to testify about Valentine’s safety record, according to court filings.
Busby said Thursday he inspected both berms in Lake Meadows Subdivision. He knows Valentine from competition shooting but has not used the berm, Busby said.
“It seems to be safe to me,” Busby said. “I wouldn’t have any problem shooting on it. I don’t worry about it being a risk to anyone.”
The Osborns have written U.S. Rep. Ruben Hinojosa and Sen. John Cornyn to ask for the Texas Rangers to step in and investigate. A spokesman for Hinojosa said staff are looking into the request but aren’t ready to comment, and Cornyn’s office had not received the letter as of last week.
Busby said he would have no problem with an outside investigation.
“If there would have been any kind of risk, we’d certainly have done something about it,” he said. “If he wants to call an outside agency to come in and check it, they can call. I wouldn’t be surprised if they tell them they have more important things to do.”
State law allows counties to regulate shooting on lots that are 10 acres or smaller and located in a subdivision in unincorporated areas of the county. Lots in Lake Meadows are around 1 acre or less.
After the boy was shot on his trampoline in Hays County, that commissioners court considered a law that would ban shooting on lots less than two acres. It failed by a 3-2 vote, but nearby Bastrop County passed a similar proposal for lots smaller than 5 acres.
The man who shot the boy told investigators he was target shooting when he hit the boy in a yard about a third of a mile away, according to the “Austin American Statesman.” He pleaded guilty Wednesday to manslaughter and was sentenced to eight years in prison.
Live Oak County Commissioner Jim Bassett said Thursday the Osborns had discussed a possible law with him, though the issue hasn’t been formally presented to the court. He declined to comment further because of the lawsuit.
The case
Herrada answered his door for a reporter but declined to comment. Valentine refused to come to the door and hung up on a reporter. Both men’s attorney, Michael Sartori of George West, said he did not want to comment beyond court filings.
In their court filings, Herrada and Valentine say they shoot in the direction of open fields and that their berms are large enough for recreational shooting. Their filings say Valentine’s berm is 24 feet wide, 18 feet thick and 7½ feet high and Herrada’s berm is 21 feet wide, 9 feet thick and 7 feet high. The Osborns dispute those numbers.
Valentine said he shoots a 1911 .45 automatic and a Smith & Wesson 357/38 model 66. Herrada said he has shot three pistols and a Remington 12-gauge shotgun.
The Osborns’ suit claims Valentine also occasionally fires a cannon, an assertion he denies in court papers.
The suit claims Valentine and Herrada cause a nuisance and violate the subdivision’s deed restrictions, which state “no noxious or offensive activity” or anything “which may be or may become an annoyance or nuisance to the neighborhood” are allowed in the subdivision. The covenant was signed in 1979.
At least five neighbors have signed statements saying they also want the shooting to stop, though many requested their names not be used. David and Marla Scott, who own 90 acres surrounding the subdivision, plan to testify at the injunction hearing.
David Scott said their home is within 90 degrees of each shooting berm, and within 100 yards of Valentine’s berm. He also said his olive orchards are directly downrange from the berm.
“If I’m working, trying to get trees pruned and stuff, and he starts popping off rounds, I’m not stupid,” Scott said. “I’m not going to be directly downrange.”
He also said friends and family always go inside or leave when they hear shooting start, and he makes his grandchildren come inside. Scott, who moved near the subdivision in 2002, said he has called the sheriff’s office twice and visited with the district attorney and a private attorney, only to be told there’s nothing he could do.
“Even though what they’re doing may not be against the law, it’s not responsible for your neighbors,” Scott said.
The Osborns’ son Christopher Osborn, a firefighter for a contractor in Iraq, also signed a statement saying that the shooting worries him because his 12-year-old daughter visits his parents.
“I spend less than 30 days a year out of a war zone and need the peace and quiet of my home to relax and recuperate before having to return to my job in Iraq,” Christopher Osborn wrote.
On the Herrada and Valentine side, two neighbors are expected to testify whether they feel the noise levels are a nuisance. Their attorney argues the claims are barred by a limitations clause, and that the subdivision deed restrictions allow recreational shooting.
Even if the Osborns win a permanent injunction at the June 5 hearing, Jan Osborn said the couple still want a new law.
“I really feel we’ve been let down by the sheriff’s office,” she said. “I feel we’ve been let down by the county, and I feel we’ve been let down by the state.”
Considering the issue at hand is occurring in Texas, it shouldn’t be a problem. Cheaper than lawyers, for sure.
Cars with reckless drivers should be.
“Neighbors should not be placed at any risk...however slight”
I agree, let’s keep those dangerous automobiles off the streets too! /s
There are no neighbors behind the berm. There is a 90 acre farm behind the berm.
But yeah, CLEO sign off on your idiotic BATFE forms and sound suppression toyz are yours for a decent price.
Still not sure why so many places have anti-Suppressor laws on the books. Up here, folks look at you like you are advocating child porn just for bringing it up.
People watch too much TV...
This must be some new definition of the word “neighbor” I am not familiar with. In most of society, and especially when referring to a “neighborhood”, the term “neighbor” involves distances measured in feet, not miles.
Additionally, most outdoor ranges do not involve complete all-surrounding enclosures.
I suppose you're sooo perfect that your car doesn't even pollute...
“My guess is, with only a 7ft berm (their words) with lots of houses around, these guys are irresponsible and I’d want them out of my neighborhood ASAP, there are a lot of irresponsible gun nuts in the US and my guess is these guys will be found to qualify ...”
Accoring to this article on range design, 15 foot minimum height, 20 to 25 foot perferred height:
http://www.rangeinfo.org/resource_library/facility_mngmnt/design/baffles_berms.htm
So should bath tubs and swimming pools. More people are killed by bath tubs than stray bullets from homemade ranges like this.
So, if I move into an apartment and the neighbor's wife is a 'moaner' (and the noise others me), I can sue to have them stop having conjugal relations?
So how are the neighbors in question “reckless”?
And how do you discern “reckless” drivers from those not? checkpoints?
I already stated why I have no objection to hunting reserves where high-powered rifles are used. I think less powerful weapons should be used for target shooting, particularly where homes are relatively nearby, whether “in the country” or not.
Wow... There’s a whole lotta nuthin’ behind those houses...
Which they are NOT doing. They are firing them into the berms ... comprende "berms"? Says in your profile you're ex Air Force but it sounds like you've never been to an outdoor pistol range in your life. Do you even own a gun?
A complete non-sequitur.
Again, I can't help you with your lack of reading comprehension, especially when reading something written by a journalist that wouldn't recognize an ambiguous sentence if it slapped him in the face.
The answer to your concern is a bit later in the article:
David Scott said their home is within 90 degrees of each shooting berm, and within 100 yards of Valentine’s berm. He also said his olive orchards are directly downrange from the berm.
That confirms that there are "open fields" downrange from their berm. I'm not sure how you would think that someone that expended the time and effort to build a berm would then shoot around them.
Scott, who moved near the subdivision in 2002, said he has called the sheriff’s office twice and visited with the district attorney and a private attorney, only to be told there’s nothing he could do.
So, we have another guy that moved into the area after the berm was built. The article doesn't say exactly when, but it was before 2002 (when the Osborns moved there, and didn't realize the significance of the berm across the street). He has been told by multiple people that it's legal -- and if any bullets had bounced over the berm, I think he would have a legitimate complaint.
State law allows counties to regulate shooting on lots that are 10 acres or smaller and located in a subdivision in unincorporated areas of the county. Lots in Lake Meadows are around 1 acre or less.
So far, this county has not chosen to regulate shooting on smaller lots.
The suit claims Valentine and Herrada cause a nuisance and violate the subdivision’s deed restrictions, which state “no noxious or offensive activity” or anything “which may be or may become an annoyance or nuisance to the neighborhood” are allowed in the subdivision. The covenant was signed in 1979.
That is the $64,000 question: whether this activity is "noxious, offensive, an annoyance, or a nuisance". If the two men have been doing this for at least 6 years (since the berms were constructed in 2002), it seems to me that the time to make that claim is long past.
In the article, it’s a few handguns and a shotgun.
Yea, I know, pretty soon you’ll have to sneak down to a dangerous part of town and ask unsavory characters, psst ya got any 100 watt?
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