Town Attorney Offers Options to Address Musquash Target Shooting

The Musquash Task Force considered potential amendments to the Town Municipal Code to prohibit target shooting on municipally-controlled properties.

Town Attorney Mike Ramsdell presented two draft amendments at the Task Force’s Wednesday, Feb. 11 meeting, recommending the first draft amendment, which he said is consistent with what he understands the group’s charge to be: addressing the single issue of target shooting in the Musquash Conservation Area.

The first draft amendment, Prohibiting Activities on Town Properties, reads:

“No person shall discharge a firearm at a stationary or moving target on any municipally-owned or municipally-controlled property, including all designated recreational and conservation areas, within the Town of Londonderry. The hunting of game on municipally-owned or municipally-controlled property shall be allowed, in accordance with State law and all rules and regulations promulgated by New Hampshire Fish and Game Department.”

Ramsdell said the second draft amendment is much broader and has a much greater chance of being challenged legally. That amendment reads:

“No person shall bring into, possess, display, discharge or use a firearm on any municipally-owned or municipally-controlled property, including all designated recreational and conservation areas within the Town of Londonderry, except when hunting for wild game in accordance with State law and all rules and regulations promulgated by New Hampshire Fish and Game Department.”

Ramsdell said he has seen deeds for two properties located in the Musquash, neither of which mentions anything about target shooting.

“My recollection is one of the two prohibits hunting in that specific area, but it doesn’t say anything about target shooting,” he said.

“The concern I have with the second amendment is limiting activities in the conservation area,” member Al Sypek said. “Some people who trap animals need to retrieve animals in the traps. And what about police officers? This says they wouldn’t be able to carry their firearms into the Musquash.”

“It wouldn’t be my recommendation to go as broad as that second amendment,” Ramsdell said, noting that amendment may be enforceable and defendable, but would also be much more open to challenge. “Reasonable restrictions are allowed and I believe an ordinance would be defensible because it’s not actually restricting the use of firearms, it’s restricting or controlling the use of town-owned property.”

“The concern I have is trying to keep the Town out of trouble,” member Bob Saur said. “Have you found any records of towns being challenged for ordinances put in place?”

“There’s not much out there for firearm regulation in the Superior or Supreme Court,” Ramsdell responded. “I looked to find any kind of reported decision out of the courts where a town has been challenged on an ordinance. The only reported decision I can find goes back to 1961, and it didn’t have to do with target shooting. It was related to Durham’s decision that firearms wouldn’t be permitted anywhere in the municipality. Complaints are generally bought to the Town and modifications are done through the Town; but in regards to judicial action, I’m not aware of any.”

Members asked Ramsdell if the Town could be held accountable if someone is shot in the Musquash, particularly, if the Town chooses not to amend the ordinance to restrict target shooting in the Musquash despite the safety concerns residents have raised.

“The landowner is not liable for someone getting shot in the Musquash. Frankly, I don’t know how you could come to a supportable conclusion in a court of law that any activity is particularly unsafe in there,” Ramsdell said. “I understand how someone can personally have that opinion, but I don’t know how I could objectively prove that in a court.”

Member Randy McIntyre asked whether there is legal liability if the Town is promoting two activities in a common area, and someone gets shot. “In this time of litigation, I would think someone would go for the deep pocket,” McIntyre said.

“As far as I know, the Town hasn’t done anything to promote target shooting in that area,” Ramsdell said.

“If a person is discharging their firearm in a reckless manner, as defined by state statutes, that person is accountable,” he added.

Considine asked what would happen if someone gets hurt in one of the neighborhoods surrounding the Musquash.

“That is different. It’s a violation of a different law – they were too close to a residence or an occupied structure, or a crime was committed because there was reckless conduct or negligent behavior,” Ramsdell said, noting the shooter is liable in that case as well.

“We can use the State laws if someone is littering or there is negligent behavior,” Town Prosecutor Kevin Coyle said. “We have never prosecuted anyone in the Musquash before. I’m not saying there haven’t been any crimes or reckless conduct in the Musquash. I’m just saying we haven’t prosecuted any of them.”

“I have seen six, seven, maybe eight locations where target shooters set up on trails and are shooting across trails, and shooting where bullets are leaving the Musquash. That’s reckless conduct, in my opinion. We’re lucky someone’s home didn’t get hit,” Considine said.

“That is probably reckless conduct, we just haven’t been able to catch anyone,” Coyle responded. “Someone shooting at something where they could potentially hit someone’s house, that’s reckless conduct.”

In addition to considering the legality of an amendment to the ordinance and the Town’s liability for shooting in the Musquash, the Task Force discussed the potential for a controlled shooting range in the Musquash, specifically, whether or not it would be feasible to install a range near the New Hampshire Flying Tigers RC Club off Auburn Road or near the Town Resource Center.

Both locations were determined to be unlikely for a town shooting range, and member Dana Coons said he thinks building, managing and cleaning a shooting range would be cost prohibitive to the Town. It would likely cost the Town up to $500,000 just to build the range, he said.

Coons said a range near the Flying Tigers’ target range would likely be similarly restricted to electronic firing to reduce noise in the area, and the location near the Town Resource Center would be too great of a liability for the Town.

The Task Force discussed the potential to open up the police shooting range for residents’ use, which Coons said would be much more secure, as patrons are required to sign in and out. That, however, poses a much greater safety risk, as the floor of the range is cement, and bullets fired by an unskilled shooter could ricochet back off the floor.

Chairman William Hart, the Town’s police chief, tasked the group with considering the proposed amendments further, as well as other potential locations for a shooting range, before their next meeting, which he said would serve as a brainstorming session.

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