Wood County officials answer Sundowner suit

PARKERSBURG – A scheduling conference has been set for April 14 on the Sundowner Gun Club suit filed in U.S. District Court against the Wood County Commission, neighbors of the gun range, prosecutor and sheriff.

The hearing will be conducted before Judge Joseph Robert Goodwin in Charleston.

The Sundowner Gun Range and owner Kendall Richards filed the original civil action in the Southern District of the U.S. District Court alleging the range and Richards were damaged by complaints from neighbors and suffered economic loss after a cease-and-desist order was issued by the commission.

The civil action alleges the owner’s Second Amendment rights to bear arms and First Amendment right of free speech were violated by the commissioners and he asked for a preliminary injunction.

After listening to complaints from neighbors of the gun range since 2012, the commissioners on Dec. 16 voted unanimously to issue a 30-day cease-and-desist order against the Gihon Road business and later voted to continue the order “until the range complies with National Rifle Association regulations,” including having an evaluation done by the NRA Range Technical Team Advisers. The commissioners agreed to pay the cost of that evaluation.

According to the county’s answer, “the purpose of this evaluation is to ensure that the range is designed and operated in a manner so as to eliminate risks to local residents.”

The county’s answer argues the plaintiffs cannot show irreparable harm as their fundamental rights were not violated and the “balance of equities” tip in favor of the county as the “concern for public safety outweighs plaintiff’s alleged constitutional infringements.”

The answer to the suit was filed on behalf of the commissioners, prosecutor and sheriff by Charleston attorneys Wendy Greve and Theresa Kirk, with the West Virginia County Risk Pool Insurance Corporation, which is representing the county officials.

The officials deny the allegations made by the gun range and its owner. According to the county’s answer, the plaintiff’s claims should be dismissed because they fail to state a claim upon which relief can be granted and that negligence, liability claims are barred by the Governmental Tort Claims and Insurance Reform Act.

The county argues the defendants are immune from punitive damages, deny any wrongdoing, deny the due process rights of the range or its owner were violated, and deny the range and its owners’ constitutional rights were violated.

The county’s response also asserts that Prosecutor Jason Wharton “is or may be entitled to prosecutorial immunity.”

In addition the answer notes there is no basis to order an injunction against the prosecutor and sheriff “as it is the county commission which is autorized by law to enter orders, not the prosecutor or sheriff.”

An answer has also been filed on behalf of the Wildwood Residents Association, noting any comments made by those individuals are protected by the First Amendment

The association asked the court to dismiss the actions and that it be awarded costs of responding to the legal action including attorney fees. The answer was filed by Charleston attorney Hamilton D. Skeens. The defendants also asked the court to deny the motion for a preliminary injunction.

The civil action names County Commissioners Wayne Dunn, Steve Gainer and Dave Couch, Wharton, the sheriff, the Wildwood Subdivision Homeowner’s Association and other “unnamed” residents as defendants.

According to the complaint, Richards operates the private gun range for members’ use and the range is in compliance with all West Virginia regulations including the state Department of Natural Resource for shooting ranges and has been inspected by a National Rifle Association-certified instructor. The legal action claims members of the gun range are “offered instruction with regard to safety and the proper use of their respective firearms prior to being admitted to use the range.” To date, there has not been a legal claim made against the range for bodily or property injury occurring on the property, according to the civil action.

Richards says he installed additional safety measures as requested and alleges there was a campaign by Wildwood subdivision residents to “detrimentally affect” the range and that statements attributed to the residents have “vilified Mr. Richards and the law-abiding citizens who are members of the range,” including “false assertions” by Wildwood residents that bullets from the range were found in homes, businesses, trees and on the streets.

“As a result of the actions of the defendants, plaintiff has suffered economic losses, including loss of business and other resulting expenses,” according to the complaint filed on behalf of the Sundowner. Richards alleges the county’s cease-and-desist order was improperly filed and is “arbitrary and unreasonable,” noting also no similar action has been taken against other gun ranges or individuals.

Richards is seeking injunctive relief, attorney and court costs, as well as an specified amount of compensatory and punitive damages.