To prevent tragedies like the New Year’s Aliamanu fireworks explosion that so far has claimed the lives of six people and injured dozens more, the Honolulu City Council is mulling a measure that could bring stricter legal penalties upon those caught using illegal aerial fireworks.
Bill 7 seeks to amend the city’s fire code to increase penalties for possessing, using and causing the explosion of any aerial device, pyrotechnic or display fireworks on Oahu. The measure, scheduled for review Thursday by the Council’s Committee on Public Safety and Customer Services, is also meant to more closely align city laws with those of the state.
At the state Capitol last week, Senate committees passed similar bills to increase fines and penalties for people who fire off illegal pyrotechnics, make it easier for law enforcement to cite and arrest them, and for prosecutors to gain convictions.
But state-level actions appear unimpressive to two Council members.
Introduced Jan. 8 by Esther Kia‘aina and Val Okimoto, Bill 7 notes that despite efforts by state law enforcement to confiscate tons of black market fireworks, their flow into the island and their explosive use has not abated.
“Although the (state’s) Illegal Fireworks Task Force … has reportedly seized over 187,000 pounds of illegal fireworks to date, illegal fireworks have nevertheless proliferated throughout many Oahu neighborhoods, as evidenced by many social media videos and news reports,” the bill states.
“The frequency at which the public experiences and witnesses illegal fireworks has frustrated many community members, including those suffering from medical conditions, people with pets, veterans suffering from post-traumatic stress disorder, first responders answering calls for medical attention, and many more,” the bill states.
The Council “additionally finds that the use of illegal fireworks on New Year’s Eve continues to take a toll on first responders.”
“In addition to the multiple fireworks-related incidents that required attention from the Honolulu Emergency Medical Services personnel, the Honolulu Fire Department reported a 30 percent increase in fireworks-related calls compared to the previous year,” the measure states.
Bill 7 further asserts “fireworks violators are rarely cited.”
“If charges against fireworks violators are filed, such charges are often dropped. This cycle has led to a situation where the public can witness illegal fireworks exploding in the sky and yet the perpetrators are rarely, if ever, brought to justice,” the measure states. “In order to break this cycle, stricter penalties for the illegal use of fireworks must be implemented.”
To that end, Bill 7 calls for some illegal fireworks users to be convicted of more serious crimes.
“If the total weight of the aerial devices, articles pyrotechnic, or display fireworks is 25 pounds or more, such person shall be guilty of a class C felony pursuant to (state law) and be punished by imprisonment not exceeding five years, a fine of not less than $1,000 and not more than $10,000, or by both such fine and imprisonment,” the bill states.
Conversely, if users of illegal aerial fireworks are found with “less than 25 pounds, such person shall be guilty of a misdemeanor and be punished by imprisonment not exceeding one year, a fine of not less than $250 and not more than $2,000, or by both such fine and imprisonment,” the bill states.
All in all, Bill 7 calls on the Honolulu Police Department and the city Department of the Prosecuting Attorney to do more.
Still, the city prosecutor submitted written testimony to the Council stating the inherent difficulties under existing city laws to convict those suspected of igniting illegal aerials. The prosecutor noted the city’s legal definition for the fireworks in question “must contain more than one-quarter grain of explosive substance.”
“In turn, an ‘aerial device’ contains 130 milligrams (approximately two grains) or less of explosive materials. Thus, one requirement for an aerial device is that it contain more than one-quarter grain but less than 130 milligrams of explosive material,” the prosecutor’s testimony states.
“This technical specificity in defining ‘aerial device’ is useful for regulating the legal and licensed trade in fireworks,” the testimony reads. “For example, specifying the maximum amount of explosive material prevents the licensing of a bomb or a cannon or a space rocket as an ‘aerial device.’”
But the prosecutor noted a police officer who witnesses “the ignition and combustion of an aerial device cannot testify regarding the mass of explosive material that item once contained.”
“In other words, the prosecution cannot prove the item qualifies as an ‘aerial device.’ That evidence has literally been destroyed,” the testimony states. “So even in cases where an officer directly witnesses the explosion, a prosecution for the offense will not result in a conviction.”
The inability of counties within the state to legally enact laws for serious crimes was also highlighted.
“Because no law authorizes a county to enact felony offenses, the proposed grading of a class C felony for certain violations of (the City Charter) would not be enforceable,” the testimony states. “Nor can a county use (state law) to graft felony penalties onto the violation of a municipal ordinance.”
At the Council’s Jan. 29 meeting to consider Bill 7, Kia‘aina expressed frustration over those written comments.
“I am quite aware of the legal concerns that have been raised under the Charter or under state law,” she said. “I’m still not satisfied with the responses that I have been given: that just because of those two provisions that somehow we should not be aligned (with state law).
“Because I don’t know why we should have weaker laws addressing aerial fireworks than the state, apart from the legal impediments,” she added.
Kia‘aina said she wanted to discuss the matter further.
In response, Christine Denton, special counsel to the Department of the Prosecuting Attorney, told Kia‘aina her office would schedule a meeting time. But Denton wanted to “add one more thing for consideration.”
“After I reread our testimony, the other issue with firework prosecution is proving all elements beyond a reasonable doubt,” she said. “And the main element really is identification, and it’s going to be really difficult … . Aside from the fact that the actual evidence has been blown up is the fact that we need to have people who want to come forward, call 911, testify at a court hearing.
“So that’s the other difficulty,” she added.
Ultimately, the Council voted to pass Bill 7 on its first of three readings.
