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.”
RE-read the article there is nothing but open fields behind the berms.
There is a 90 acre farm behind the berm.
Hmmmm. farms have crops. And crops are harvested by...people.
A neighbor is a neighbor.
You must have missed the line that stated the association’s bylaws allow recreational shooting in the subdivision. Since shooting is specifically allowed, I doubt shooting would fall under a nuisance activity.
“Just no homes or other habitation within the distance the rounds could travel and in the direction in which they are fired.”
That’s exactly what is the situation in this case!
The persons complaining ARE NOT DOWNRANGE!!
That is not necessarily true. Depends on whether or not this provision has or has not been enforced prior and a few other circumstances can affect that provision. - a former HOA board member.
Additionally, most outdoor ranges do not involve complete all-surrounding enclosures.
I'm sure they don't and thus incur some degree of danger to their surroundings which the authorities apparently have deemed acceptable.
So a hunter should target shoot with something he isn't going to use to hunt with? Clever!
Your idea of shooting restrictions are totally unworkable in the real world.
There are no berms or backstops used in hunting, and most hunting takes place well within rifle range of homes.
Sounds like there's more to this than is being reported. The Osborns are lying to the courts to get their way. Secret gun grabbers?
And why wait 5 years to decide there's an issue?
1) The orchard owner has legitimate concerns regarding the adequacy of those 7ft berms.
2) This sort of issue is one of my many objections to the NFA '34 restrictions on suppressors.
Good point that cuts to the nub of the issue, anything can be taken to the extreme. Who could disagree with that but someone even more extreme than we?
2. Suppressors are legal in Texas.
...and there's the key to this whole frickin' debate. The Osbornes just don't want people shooting their guns unless they're far away enough that they can't hear it. Tough tiddy.
There's a shotgun range about 1000 ft. from my house. They have turkey shoots every Sat. & Sun. from 11 a.m. till dark ALL WINTER LONG.
I rather enjoy knowing there are dozens of well armed citizens right up the street.
Can you hear me now?
These guys need to invite Mikayla and her nosey grandparents (where are the parents?) over to do some plinking with a Ruger 10/22 or something.
Little girls love plinking and popping balloons with a .22. I know: I just introduced two little girls from church and their dad to the joys of shooting this weekend. What’s more, given that the girls don’t have big egos to smooth like us guys, they generally grow up to be pretty good shots when they are older. My daughter, for example, is quite a sharpshooter at 13.
(And yes, I know, the Osborns’ and a million other liberals’ heads just exploded at the mere mention of touching an eeeevil gun!)
Don’t forget, in addition to the chainsaws, we should ban fishing too.
http://www3.whdh.com/news/articles/bizarre/BO83701/
Almost nobody is killed while fishing at the beach!
Absurd that a newcoer to the neighborhood, not even downrange, runs to the courts for this.
Banning private firearms is the goal of both people who use only their emotions ,and those who will enslave us all.
So you are my neighbor?
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