SUMMARY OF THE LEGAL ISSUES
REGARDING THE TRAP AND SKEET RANGE
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as of February, 2015

To all,

 

There seems to be a fair amount of confusion regarding the legal issues surrounding the shooting range and I hope this helps to clarify what’s going on.

 

This information is based upon emails received from the attorney representing the Town in the CIVIL CASE (in September of 2014)  as well as information from E-Courts along with information gathered from various Town and County sources.

 

As you may know, there are TWO avenues of legal actions currently in play which are a CIVIL CASE and a CRIMINAL CASE.

Both legal proceedings share terms such as Supreme Court or Appeals Court and as such can lead to quite a bit of confusion as to which term applies to what case. 
So in the interest of clarity, I will refer to both cases as either the CIVIL CASE/CIVIL COURT or the CRIMINAL CASE/CRIMINAL COURT and minimize any other court terminology unless it is necessary for the purpose of explanation.

 

  • The CIVIL CASE refers to the lawsuit brought by Hunter Sports (the licensee of the range) against the Town of Brookhaven which basically challenges the legality and enforceability of the Town’s noise law.
     

  • The CRIMINAL CASE refers to the processing of summonses issued to the range by the Brookhaven Department of Public Safety for violations of the Brookhaven Town noise law.  The Sixth District Court handles these violations.

 


THE CIVIL CASE:

 

On January 17, 2007 the range’s licensee filed a lawsuit basically alleging that Brookhaven Town had no right to enforce its noise law.  In any lawsuit a “cause of action” must be cited to demonstrate a fact or combination of facts that gives a person the right to seek judicial redress or relief against another.  The licensee listed Ten such causes ranging in scope from calling the noise law unfair to such issues as due process, illegal confiscation and the constitutionality of enforcing a Town law.

 

Without going through each cause, it’s sufficient to know that at least FIVE have been decided in favor the Town while those remaining are either redundant or procedural (and are thus irrelevant) while two remain significant enough to contest which is what the court is dealing with presently.  The most recent appearance date for this matter was December 18, 2014 which was adjourned and rescheduled for February 26, 2015

 

The most significant ruling so far was rendered on October 11, 2011, namely, whether the noise ordinance was constitutional and that was decided in favor of the Town; naturally, that ruling was appealed.

 

On August 27, 2014 an Appellate Court upheld the original ruling and denied the appeal clearing the way for the CRIMINAL COURT to process the existing noise violations as well as allowing the Town to resume issuing tickets.

[more on this in the CRIMINAL CASE below].

I have remained in touch with the attorney hired by the Town to represent it in these proceedings.
I specifically asked about the current status of the CIVIL CASE both in terms of where it stands legally as well as what comes next.  As of that September 2014 email, I was told that the remainder of the CIVIL CASE was moving into the “discovery” phase which is basically the last step before proceeding to an actual trial before a judge and the attorney’s comments were as follows:

 

“Ok simply put.  There will be a limited amount of discovery as this is somewhat of an open book. But after it is complete I expect to move for summary judgment again so between discovery, another motion, another decision and another appeal we are still 2 years away.

But do not lose hope because if the conviction on the noise violation is upheld
[more on this in the CRIMINAL CASE below], then- subject to another appeal - you are talking about a little over a year maybe less as Hunter Sports could not afford to stay open if it was hit with violation after violation. Then all I would be fighting in my action would be a damages claim. I shall keep you updated”.

The attorney added:

“The whole purpose of this adventure is to attempt to whittle down the complaint and the causes of action which is an appropriate way of going about resolving litigation… I understand and appreciate that this process seems ludicrous.  However, it is the system in which we must operate and we continue to press for a final resolution.”

 


 

THE CRIMINAL CASE:

 

 

Since the October 11, 2011 CIVIL COURT ruling affirming that the Town has a "Constitutional Right" to enforce its noise laws, the Town resumed issuing violations and on December 14, 2012 the Sixth District Court of Suffolk County ruled that the Suffolk County Trap and Skeet Range was GUILTY of violating the Town of Brookhaven Code; Section 50-5A (the noise law)
 

That decision was appealed by the Licensee and is currently before what is known as the Appellate Term.
The appeal process essentially sat idle until the August 27, 2014  ruling in the CIVIL CASE.

 

The CIVIL COURT’S re-affirmation of the Town’s right to enforce its noise law allowed the issue to be revisited in the Appellate Term of the CRIMINAL COURT.  So far, the Appellate Term has yet to schedule oral argument and, according to the Clerk’s office there, it takes approximately one (1) year for a matter to be heard and so far it’s been about five months since the ruling allowed the case to continue. 

 

So barring any unforeseen delays, there should be a ruling sometime this year.

A community email sent on January 14 of this year, referenced an email sent to one of our members by Councilwoman Connie Kepert on December 17, 2014 in which she wrote: 
As per our Town Attorney if they [Hunter Sports] lose this appeal they will not appeal again and the town can go for ‘injunctive relief’”. 

 

The relief Connie is referring to would be the Town going to court and asking a judge to issue a restraining order barring the range from further operation.
If such an order were issued, it would effectively close the range.

 

 

 


WHAT IT ALL MEANS:

 

As of this writing (February, 2015), from a timeline point of view, based upon the dates of the recent rulings, we’re looking at about 12 to 18 months for the CIVIL CASE to reach a conclusion and at least another 6 to 8 months for the appeal in the CRIMINAL CASE to be ruled upon. 

 

There are several possible outcomes to all of this and the simplest way to lay out all of those possibilities would be to break them down into likely scenarios.

 

 

SCENARIO 1:

 

The CRIMINAL COURT rules in favor of the Licensee and upholds their appeal.
 

This would change nothing because such a ruling would simply allow the range to operate as it has been and the ultimate resolution would then rest solely with the outcome of the CIVIL CASE.

 

SCENARIO 2 (Best short-term result):

 

The CRIMINAL COURT denies the appeal of the Licensee.

This is where it gets interesting.
 

If the Licensee’s appeal is denied, it would allow the 6th District Court to affirm the guilty verdict of the appealed violation (resulting in a fine), it would allow the Court to process any existing summonses (there are about 300 or so waiting to be adjudicated) and it would allow the Town to resume issuing summonses for any ongoing noise violations.

 

More importantly, such a ruling would allow the Town to pursue injunctive relief. 
It would also afford the community very solid footing in demanding that the range be closed.

 

SCENARIO 3 (Best long-term result):

 

The CRIMINAL COURT denies the appeal of the Licensee and the CIVIL COURT rules in favor of the Town.

Naturally, if the CRIMINAL COURT rules in favor first, the range would likely be shut down.  But if the CIVIL COURT follows with a ruling also in favor of the Town, then it's game, set, match and we can say goodbye to the range forever.

 

 

SCENARIO 4 (Worst Case result):

 

This is something we’d rather not have to consider, but it’s wise to understand that however unlikely it may be, it IS possible that both the CIVIL COURT and the CRIMINAL COURT could decide to rule in favor of the Licensee, or the CRIMINAL COURT could rule in favor of the Town, but the CIVIL COURT rules in favor of the Licensee.  If this happens, then the range would essentially win.

 

There would, however, be one glimmer of hope worth mentioning.

If the County/Licensee wins the CIVIL CASE, the Town has made it clear that would appeal the decision to the NY State Court of Appeals (the highest court in the state).  This, of course, is subject to the case being accepted as worthy of the court's attention (the court often declines to hear cases for a variety of reasons)  and if accepted, the litigation would likely take a few years.  However, if the Town should win its appeal, then we would win too.

 

It is worth noting that almost everyone in the legal and political world who has offered an opinion on all of this (and there have been many) all seem to think the Town will ultimately prevail.  But since nothing is guaranteed, all possibilities need to be considered.

 

 


 

OBSERVATIONS and SUGGESTIONS

 

There are many issues that can be argued in regard to the range but only the two court cases have the potential to positively or negatively affect us in the near future and it would be wise to focus our attention on issues regarding these cases.

 

Let's begin with this:

 

The Licensee's current lease agreement runs from May 1, 2006 to December 31, 2015.

The agreement also allows options for two (2) Five-year extensions which, if fulfilled, would keep the range operating until about 2025.

 

 

Since the current lease agreement expires at the end of this year, I think we should focus on that and what can be done about it.  The way the court cases are shaping up, there seem to be only two basic options to address and both are tied to the extension of the lease and both rest upon the decision made by the Appellate Term in the matter of the appeal in the CRIMINAL CASE.

 

OPTION ONE:

 

The first issue would be what to do if the Appellate Term denies the Licensee's appeal.

This one is basically a "no-brainer" because if the appeal is denied (and there are no further appeals as Connie Kepert suggested), then most of what would come next would be from the Town.  They could resume processing violations, resume issuing summonses and they can petition the court for injunctive relief.

 

In such a situation, it would be unlikely that the County would enter into an extension agreement with the Licensee.  Doing so would effectively be agreeing to operate illegally and that isn't likely (yes, most people assume they're doing that now but that hasn't been proven legally yet).  If the Town is successful in obtaining injunctive relief from the court, then any extension would be moot as the range would be closed outright.

 

 

OPTION TWO:

 

The second issue is more complex and would require a concerted effort from the community as well as from our representatives in both the Town and the County.

 

If the Appellate Term either declines to rule on the Licensee's appeal or in fact rules in favor of it, then we would have a situation where the County could authorize a license extension, but would be doing so while litigation (the CIVIL CASE) is ongoing and THAT is where we'd need to focus our efforts.

 

We would need to talk to the Suffolk County Legislature and make the argument that authorizing a license extension while in the midst of as yet undecided litigation which could affect the future of the range would be both reckless and irresponsible.

It's one thing to open a facility and then encounter litigation (as has already been done) because they could simply argue that there was no litigation at the time the range reopened and since it came after, they had deal with it "on the fly".  But since the original license agreement expires at the end of this year and the CIVIL CASE would still be at least a year from a resolution, that argument can no longer be used (at least not logically, anyway).  There's a difference between encountering litigation at a later date and having it in place from the beginning.

 

It would be foolish to sign a five-year agreement with a Licensee when it is quite possible that his venue may end up closed for good within a year or so after signing and it could result in the County being sued by the Licensee, or the Licensee could demand to be indemnified against early termination, which in either case would cost the County (read: the taxpayers) money.

 

So the logical thing to argue would be that the County defer any license extension until all legal issues have been settled.

 

It's a simple and logical argument but it's one that has to begin now and has to continue until either the CRIMINAL COURT rules in favor of the Town, or the current lease expires.

 
 

 

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