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.”
From thoughts from a lurker reading this thread.
Noise is not a valid complaint if they are shooting during reasonable hours. Right now my neighbor is using a leaf blower that is causing me to turn up the TV, but he is definitely allowed to use it.
If I had kids, I would be far more concerned about neighborhood shooting ranges than I would be otherwise. Kids are natural explorers and seldom stay at home.
When I was a kid, my Dad was teaching me how to use firearms at a government approved range. I was shooting a .22 revolver with 2 hands when I decided to shoot using 1 hand “like the cowboys do on TV”. I pulled the shot so much that it missed the front berm, but the bullet was stopped by a protective SIDE BERM.
Wouldn’t this matter be solved simply by building protective side berms?
A dirt berm would be a bit hit or miss unless they managed to get a decent street level scan of the area.
There are two berms on the west side of the street. One of them is too far south to bother the orchardist, the other is in the line.
The orchardist should simply cell call the guy with the nearby berm and tell him that he is at the orchard for a while. Problem solved. No lawyers. No cops. Solved.
And he can probably get an invite over to the range to boot.
Now that is funny. World-of-war-boi to the rescue.
It's also possible (and more likely, given the carefully-constructed berm and direction of fire) that a car will go out of control on the road in front of their house and hurt someone in the family either in the yard or in the house. Using your logic, no one should be allowed to drive down that road.
Saying something is very remotely possible is not valid grounds for curtailment of rights, especially when it is clearly demonstrated that proper safeguards are being taken.
On the VERY remote chance that the bullet could travel past the berm. And we have no idea if the landowner gave them permission.
They don’t need the landowners permission. Country rules apply.
Everyone who lives out in the country knows where everyone else lives and we avoid those angles. Everyone shoots...everyone.
Most holidays sound like a war zone. Christmas day is really impressive.
Thanks for the map link, mvpel. I think I can see the Scott’s olive trees to the SW.
Lake Corpus Christi sure looks dry!
I'm no kid FRiend; I'm as old as you. For someone being a real estate broker; you sure didn't know much about HOAs. I point that fact out and you come back with personal attacks? Regardless of your “experience” you are dead wrong, as even others have pointed out.
BTW, I didn't quit after four years.
I used to spend a couple a weeks each summer at the Boy Scout camp near Live Oak. Beautifully wild area in in the mid 70’s.
Individuals who have no clue can always make a case against reason and call it a reasoned response.
Then some idiot would build a house behind the berms, and sue the range. It's happened, a lot.
Your neighbors are partaking of a perfectly legal pastime that you happen not to like, and doing it in a safe manner? Move.
They aren't firing onto their neighbors' lands. They are firing into the berms on their own land. They were just pointing out that there is nothing beyond their berms but open land.
I wish the scrot that put a round through my front window, weekend before last, had been so courteous. Had glass all over the living room, and determined that the bullet crossed the room diagonally, mostly over where our heads would have been had we been in the room. If the bullet had come directly in the window, it likely would have hit, and perhaps penetrated the wall between that room and my bedroom.
This was at 0230, and of course I slept right through the whole thing.
I doubt it. If the shooting hasn't been " an annoyance or nuisance to the neighborhood" since 1988, it's unlikely to have suddenly become one.
It is in the Texas countryside, particulary in Humblegunners yard.
There is a major difference between shooting at a 4 or 6 inch fencepost and a 21 feet wide, 9 feet thick 7 feet high pile of dirt. And that's the "small" berm.
The projection of the line of fire, not the actually tracjectories of their bullets, which end at their berms.
Then they should not move next to a couple of guys with shooting ranges on their property. Yes? The shooters were their first.
Liberals move next to airport that has been there since 1927.
Liberals begin a terror campaign against the airport for "danger" and "noise."
Liberals have deep pockets; bankrupt airport owner. Airport closes. Owner loses everything.
Liberals celebrate by building an abortion clinic where airport used to be.
Don't you love a happy ending?
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