Hearing on range injunction held this week
PARKERSBURG Wood County officials were called to Charleston earlier this week to testify at a hearing in the Sundowner Gun Club lawsuit.
County Commissioner Blair Couch, Prosecutor Jason Wharton, Deputy Matt Smith and Deputy Shawn Graham, chief law enforcement deputy with the Wood County Sheriff’s office testified. Also testifying was gun club owner Kendall Richards.
“We were questioned by attorneys for both sides. It is my understanding legal briefs (arguments) are to be filed within the next 20 days or so on the issues that were raised,” Couch said.
Charleston attorney Theresa Kirk with the county’s insurance agency, the West Virginia County Risk Pool Insurance Corp., is representing county officials. Kirk said Tuesday’s hearing was on a motion for a preliminary injunction filed by Richards.
“The plaintiff is seeking a preliminary injunction pending the final outcome of the case,” Kirk said.
Legal briefs will be filed by both sides. No date was given by the court when a decision would be rendered.
The lawsuit was assigned to U. S. District Court Judge Joseph Robert Goodwin.
If granted, the injunction would lift the cease and desist order filed by the county commissioners against the gun range allowing the business to reopen and continue to operate pending the final ruling of the court.
A tentative trial has been set for March 2015.
Both sides are also continuing to argue whether the federal court is the proper jurisdiction for the suit.
The civil action alleges Richards’ Second Amendment rights to bear arms and First Amendment right of free speech were violated by the commissioners.
The commissioners issued a cease and desist order against the Gihon Road gun club after residential and commercial neighbors lodged complaints, saying they found bullets they believed to have been fired at the gun range on their property.
The complaints began in 2012. County officials said no complaints have been filed since the gun range was closed.
When they issued the cease and desist order, commissioners asked the gun club to have an evaluation conducted by the National Rifle Association’s technical team and asked Richards provide that report to the commission. The county offered to pay for the evaluation.
Richards then filed a lawsuit. He also is claiming damages, alleging his business was damaged by the complaints and closure.
The lawsuit names commissioners, prosecutor, Sheriff Ken Merritt and Wildwood Subdivision Homeowners Association as defendants.
The association and its members were among those filing complaints about the gun range.
Wood County officials claim they acted on “credible information” when they issued the cease and desist order for the southside business.
Richards has maintained his range is safe.
The original order was issued in mid-December for 30 days. On expiration of that order, the commissioners voted to continue the order until the range complied with NRA regulations and had an evaluation conducted.
According to the county’s answer in the civil suit, “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 commissioners said they were acting to eliminate hazards to “public health and safety,” and cited code allowing them to eliminate “anything the commission determines to be a public nuisance,” as authority for issuing the order.
Richards alleges he was not given adequate notice to refute the allegations, and that there is no evidence any of the bullets produced came from his gun range.
According to the plaintiffs, the gun range is affiliated with the NRA and can only be used by members of the club.
Attorney for the Sundowner is James Tinney, of Charleston. The commissioners, sheriff and prosecutor are being represented by Charleston attorneys Wendy Greve and Kirk. Hamilton Skeens of Beckley is representing the Wildwood Subdivision Residents Association.