Thursday, April 14, 2005
Judge in right-to-hunt case will visit preserve
He will rule on whether target practice is an integral part of hunting.
Circuit Judge Michael Gamble agreed Wednesday to visit Orion Estate and view the shooting of both clay targets and live birds as part of next week's bench trial in a lawsuit filed by the hunting preserve. Orion claims that the Nelson County Board of Supervisors violated its right to hunt - a protection voters added to the state constitution five years ago - when it turned down a zoning request for a shotgun sports center in which participants shoot at clay pigeons.
The case is believed to be the first of its kind in the nation.
Although Virginia is one of 12 states to make hunting or fishing a constitutional right, this is the first time a court has been asked to interpret that protection, according to lawyers in the case.
To better understand how target practice is an integral part of hunting, Orion's lawyers said, the judge needs to leave the courtroom and literally get out in the field. Three fields, actually: two for target practice and one for a real hunt being planned for Gamble's visit to the 450-acre estate.
"He'll see exactly what's going on there," said Stephen Halbrook, a Second Amendment lawyer from Fairfax who represents Orion.
Virginia judges will occasionally allow a site visit as part of a trial if, for example, jurors might get a better idea of a case by touring the crime scene. But it's more unusual for a judge or jury to actually get a live demonstration of the issue at hand, as Gamble will.
The pheasant hunt will be similar to one Orion had planned earlier this month. On a hill overlooking a field where hunters are waiting, pheasants raised on a game farm will be taken from their cages and thrown into the air in the general direction of the hunters.
For the ensuing shooting to be safe for the hunters and humane for the birds, participants should first "warm up" by shooting at clay pigeons thrown into the air by a machine, Orion argues.
And that is what the legal shooting match is all about.
John Zunka, a Charlottesville attorney who represents the county, argued Wednesday that shooting at clay pigeons is not the same as hunting and should not be afforded constitutional protection. While county officials say they have nothing against hunting, a conditional use permit for Orion's shotgun sporting center was turned down after nearby residents raised concerns about noise and safety.
Orion counters that shooting at clay targets is to hunting what pre-game warm-ups are to basketball.
"If you just turn people loose with a shotgun to hunt pheasants and they don't have any practice beforehand, they're going to bang away, they're going to miss a lot, and they're going to wound a lot of birds, which is not humane," Halbrook said.
If Gamble were to rule that target shooting is hunting, Orion would be free to pursue plans for its shotgun sports center. But the case has become much bigger than that - as evidenced by the presence of a National Rifle Association representative at Wednesday's hearing.
"Orion is in a fight for the rights of Virginia hunters," said Morris Peterson, the estate's managing director. By attempting to define hunting as only the killing or pursuit of live game, he said, the county "wants to restrict the constitutionally protected rights of hunters by narrowly defining hunting and denigrate it into a sterile blood sport."
But if target shooting were to be protected by the constitution under Orion's argument, Zunka asked, what about other pre-hunt activities such as purchasing a shotgun or fitness training? Should the constitution also protect shopping and exercise?
Besides, he said, the commonly accepted notion of hunting to put food on the table does not apply to clay pigeons.
"The gravy might be tasty," Zunka said, "but the bird will be a little tough to eat."
