It’s not Rocket Science, It’s the Law: this 4th of July, Leave the Fireworks to the Professionals

There’s always much discussion this time of year, each and every year, whether or not the Legislature should once and for all repeal M.G.L. Chapter 148 § 39 (the Massachusetts Fireworks Law). Fire and Public Safety Officials continue to urge enforcement, citing safety, awareness, and regulatory concerns. Consumers, Libertarians, and now even some politicians (See Bill H.3372), offer an opposing perspective, focusing on lost revenues, the unfairness and inefficiency of arbitrary geographic constructs (with fireworks sales and possession in neighboring New Hampshire being lawful and, for the most part, non-restricted), and the absurdity of out-lawing low-level pyrotechnics like sparklers, "party-poppers", "snappers", and "serpents." Unless or until the Legislature takes action, the debate will continue.

It is neither my intent nor inclination to resolve the debate with a blog. Instead, as a Criminal Defense Attorney, I will once again answer the questions I am routinely asked each and every year by citizens (and prospective clients) who want to know the applicable law. In sum, it is against the law for private citizens to use, possess, or sell fireworks in Massachusetts. It is also illegal to purchase fireworks in another state and transport them into the Commonwealth. Under Massachusetts law, fireworks are defined as any "combustible or explosive composition or substance, or any combination of such compositions or substances, or any other article, which was prepared for the purpose of producing visible or audible effect by combustion, explosion, of deflagration, or detonation." The statute specifically, and explicitly, includes "blank cartridges"; "toy cannons in which explosives are used"; "the type of toy balloon which requires fire underneath to propel the same"; "firecrackers"; "cherry bombs"; "silver salutes"; "M-80s"; "torpedoes"; "sky-rockets"; "Roman candles"; "sparklers"; "rockets"; "wheels"; "colored fires"; "fountains"; "mines"; and "serpents." In other words, all conceivable fireworks are prohibited in Massachusetts, including Class C fireworks that are sometimes described as safe, sane, minor or low-level.

The penalty for selling fireworks in Massachusetts is a fine of between $100 – $1,000 and up to one year in jail, or both. Immediate confiscation, and ultimate forfeiture, of the fireworks at issue is mandatory, and a related arrest may be effectuated by any officer qualified to serve criminal process. A warrant for arrest is not required for illegal sales. The penalty for possession or use of fireworks in Massachusetts is a fine of between $10 – $100. There is no jail, and no authority to arrest for mere possession. The fine is imposed only upon conviction, but all illegal fireworks must be seized, and forfeited upon conviction. This said, it is critical to understand that fireworks used in combination with other highly combustible materials or accelerants may be considered bombs, infernal, or improvised incendiary devices under both state and federal law (See M.G.L. ch. 266 § 102 et seq. and 18 U.S.C. §§ 921 – 931) and prosecuted more seriously, with significantly enhanced penalties.

While I strongly suspect that law enforcement and public safety personnel have far more important things to do than hassle every black-cat tossing juvenile, it is important for citizens not only to know the current state of the applicable law, but to be aware that authorities can and do have the discretion to enforce it. Moreover, prosecution and conviction under the statute, even if only for possession, will result in a permanent criminal record for adults over 17.

So have a safe and happy 4th of July everyone – and remember, if you do celebrate, do so safely and lawfully – and do not drink and drive. The same officer who might be willing to cut you a little slack with that firecracker is not going to do the same with OUI/DUI/DWI offenders. There’s a big difference between blasting off a few poppers and getting blasted off too many "pops" and then driving. I can always use the business, but you really don’t want to be calling a defense lawyer like me to secure your "independence" from the police on July 4th.

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828