Why, asks Boise’s fire chief, can we buy illegal fireworks when we can’t use them?
Idaho's fireworks laws have had prosecutors scratching their heads for years. In June, Boise Fire Department Chief Dennis Doan announced he planned to pursue restitution from fireworks vendors if their products cause damage. But how would that work?
For the past week, state fire officials have again pleaded for residents to light off only "safe and sane" fireworks, not the aerial fireworks that are legal to sell but illegal to use in Idaho.
Much has been made of the "fireworks loophole" in recent years. State law bans aerial fireworks except in cases of "the importation, storage and sale of fireworks for export from this state." But for years, vendors have sold the fireworks, asking buyers to sign an affidavit promising not to light the fireworks off in Idaho.
Twice since last year, the Idaho Attorney General's Office has concluded the law does not allow fireworks to be sold to the general public — providing opinions at the request of Rep. Mat Erpelding and Sen Maryanne Jordan, both Boise Democrats.
Last year, Doan campaigned to close the loophole. Last month, Doan pledged to pursue restitution after fires — not just from folks who light off the fireworks, but also the vendors who sold them in the first place.
Doan is insistent: There is no loophole in Idaho law. But obstacles to his effort remain, including that not all prosecutors are on the same page with the AG.
Restitution requires a court case. In the past, that has meant charging individuals who start fires with violating Ada County's fireworks ordinance. When it comes to vendors, law enforcement and prosecutors have, in the past, hesitated.
Doan initially told the Statesman he didn't plan to charge vendors with a crime. Boise Fire Department spokeswoman Char Jackson said the department hadn't spoken with Boise or Ada County prosecutors about pursuing charges under the state fireworks provision. But by Thursday, that apparently changed: "We will come after restitution, and we will prosecute," Doan said at a press conference previewing the 2018 wildfire season.
"Restitution would probably not come from the fireworks provisions," said Scott Bandy, the chief criminal deputy prosecutor with the Ada County Prosecutor's Office.
Despite the AG's January analysis, the text of Idaho law hasn't changed. And that leaves things murky in the courtroom, Bandy said. The prosecutor's office would handle potential charges on a case-by-case basis.
Bandy said the AG's office made its decision based on the "plain reading" of the state fireworks ordinance.
"We're not as firmly committed to (the plain) reading," he said. "There isn't any case law out there that interprets (the fireworks provision). It's shaky ground for us."
Instead, vendors would have to be charged under adjacent charges, Bandy said, such as malicious injury to property.
That also leaves local law enforcement on the fence about arresting vendors who carry aerial fireworks.
"We have asked the Ada County Prosecutor’s Office to review the latest Idaho Attorney General’s analysis of Idaho’s fireworks laws. Once we get their analysis, we will determine what our next step is," said Ada County Sheriff's Office spokesman Patrick Orr.
Vendors in Boise proper receive their licenses after inspections from the Boise Fire Department. Doan said the department will not issue a license to any vendors carrying aerial fireworks. But just a few miles away in Canyon and Elmore counties, vendors are still selling them.
Where criminal options fail, the department could have success pursing civil cases against vendors for negligence. Those cases would be handled by the Boise City Attorney's Office. The Statesman has reached out to the city attorney for comment.
To further complicate things, some officials are unsure of how effective potential evidence might be in a case against a vendor.
Fireworks are often still intact after a fire, said state Fire Marshal Knute Sandahl. In many cases, he said, the outer wrapping of a firework is preserved because the starting point of a wildfire burns with the least intensity.
But even intact, Sandahl said, there's often no way to trace the fireworks to a vendor. Chemical identifiers and serial numbers might not offer airtight connections.
"There's always a possibility of chemical analysis, but you have a very small number of wholesalers who sell (their fireworks) to vendors. (We could say) this was TNT, this was Santore. But much beyond that, you'd have to have an individual (tell you where it was bought)," Sandahl said.
Doan believes the affidavits solve that problem. "The vendors are creating a paper trail for us," he said. An example affidavit obtained by the Statesman requires the buyer's address and driver's license, but does not specify exactly what they bought.
Changing the law
In the past, Idaho lawmakers have voted against legislation that would clarify the text of the state fireworks law. Doan told the Statesman he doesn't believe a change to the law is necessary.
"There are always multiple ways of interpreting a law. It's been a debate between a lot of people. Now we have a letter that says there is no loophole," Doan said.
Prosecutor Bandy said he would welcome a change to the wording.
"A little bit of clarification can always make it easier on everyone," he said.
The Boise Fire Department has encouraged people to report aerial fireworks to non-emergency dispatch at 208-377-6790. Orr said sheriff's deputies will prioritize calls for service on July 4.
"While we will have normal patrol staffing on the holiday and the days around it," he said, "we want deputies to concentrate on issues that have the most impact on our community (persons and property crimes) and be able to respond to emergencies like every other day of the year, so our response to the dozens of illegal fireworks calls and complaints will be limited."
Anyone observed lighting aerial fireworks risks a citation, Orr added.
"I can't impose the restitution," Doan said at last week's press conferece. "But the judge has to. Boise Fire Department does not impose the restitution, but we will pursue it."