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COA rules against longtime shooting range owner

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A Marshall Circuit judge erred in granting partial summary judgment in favor of a shooting range owner on his neighbors’ claims of nuisance, the Indiana Court of Appeals held Thursday. The appellate judges found a statute cited by the trial court did not apply to the owner.

Levi Wayne Kemp built a shooting range on his property in Marshall County before any ordinances, zoning restrictions or laws governing shooting ranges were in effect. He has since expanded several times and received the county board of zoning appeals’ approval in 2008 to continue the operation of the range. His neighbors across the road, Connie and Richard Yates and Jason and Pauline Tibbs, sued Kemp, claiming nuisance, negligence and other claims. They maintained that the shooting range prevents them from riding their horses, scares the horses and they often have to close their windows because of noise from the range.

Marshall Circuit Judge Curtis D. Palmer granted partial summary judgment to Kemp on the nuisance claim, the only issue before the COA. Palmer cited Indiana Code 14-22-31.5-1 et seq. in determining Kemp wasn’t liable for his neighbors’ nuisance claims.

But Senior Judge Betty Barteau pointed out in Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp, 50A04-1204-CT-192, that Section 6, which provides a safe harbor in limited circumstances for owners, operators and users of shooting ranges against claims of noise pollution doesn’t apply to Kemp. That section is only applicable to ranges “if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range.”

Kemp isn’t entitled to the protection of Section 6 because there were no applicable laws or ordinances in effect at the time he built and began operating the range, the judges held.

They also found evidence to establish a dispute of material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance or discomfort. The matter is remanded for further proceedings.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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