The final decision in the Firefox case has been handed down by the judge. To say the very least, it was highly unfavorable to Firefox. I think it is important that everyone know the entire sequence of the case, and how the case came to be decided as it was.
I also attempt to answer some of the questions that we are getting about this case and its impact on folks like you.
Finally, I hope that this is the last such, rather unpleasant posting regarding purchases of M80 kits or components that I will have to make.
Here is a chronology written by Tom Handel, Vice President of the Pyrotechnics Guild International. This tells you from the very beginning what happened in the Firefox case and why.
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An Abbreviated Guide to the Firefox Case as of 11 May 2007
1. How did the Firefox case start?
It started when an individual, now deceased, manufactured and sold illegal
exploding devices to someone who was subsequently injured by one of the
devices. The manufacturer was caught, charged, and agreed to cooperate with
law enforcement by providing the names of his sources for chemicals and
other supplies he used to make the illegal explosives. Firefox was found to
be the primary source.
2. So what did Firefox do to deserve all this attention?
Refer to http://tinyurl.com/2dohs8.
The reference document details both violations contained in the original
government complaint against Firefox, as well as a significant number of
additional violations alleged by the government as a result of their review
of five years of sales records subpoenaed from the business. Read
paragraphs 17-25 for the specific violations Firefox was accused of in the
current case related to the Federal Hazardous Substances Act (FHSA).
Paragraphs 35-39 delineate further violations, this time of HAZMAT law and
Hazardous Materials Regulations.
As background, the proprietors of Firefox had been in trouble before for the
same general type of activity as is at issue in the current case. In the
reference, see paragraphs 13 -16 which describe a Consent Decree and
Injunction which was imposed on the Firefox proprietor in 1986, then
operating a business under a different name, by the same Federal Court that
heard the current case.
3. So, did Firefox really do all this stuff?
Refer to http://tinyurl.com/3a7pel.
This document is well worth reading if you wish to have a full
understanding of the case, but boiled down it basically says that the judge
could find no significant differences of material fact between the
prosecution and defense, and hence there was no need to go to trial to
determine the facts. This means that basically, the defendants admitted
that they had in fact done what the prosecution alleged they had. So the
answer from a legal standpoint is, "Yes, they did it."
4. So what happened then?
Refer to http://tinyurl.com/2r5k6x.
Having, in essence, been found guilty, the proceedings moved to the
"penalty phase." After some preliminaries, the prosecution and the defense
were each asked to submit a draft injunction to be issued by the Court
prohibiting Firefox from again engaging in the illegal activities specified.
Needless to say, the prosecution version was far more restrictive than the
one proposed by the defense. The Court, with one minor exception, issued
the more restrictive Injunction proposed by the prosecution, verbatim. This
injunction and the Court's reasoning in adopting it can be found at the
above reference. The restrictions imposed by the Court on what, and how
much, Firefox can sell are sufficiently severe to threaten the continuation
of the business.
5. So if these guys were guilty, how come we spent so much time and money
defending them?
The answer to this is complicated.
(a) It wasn't all that clear they were (very) guilty in the early
going. Much of what they did, under earlier, long-standing interpretations
of the rules and common practice by the CPSC, was believed by most in the
industry to be permissible and not believed to be in violation of any
Federal regulations. It appears that the CPSC "changed the rules" and
adopted more restrictive enforcement practices without notice - kind of a
"gotcha" - and they managed to (ultimately) convince the Court they were
within their rights to do so. Eventually, well after the case began, it
became evident that some of the activity Firefox was ultimately charged with
and admitted to would have been in violation of the FHSA even under the
"old" CPSC interpretations and practices.
(b) Our side did not get to choose our defendant. The prosecution
decides who the defendant is going to be. Three or four supplies dealers
had been recently put out of business by the CPSC in rapid succession
(within a couple of years) using similar tactics. It was reasonable to
conclude that the CPSC was on a campaign to eliminate pyro supplies dealers
altogether. When the cross-hairs appeared on Firefox, it turned out to be
(1) one of the two major supplies dealers, and (2) one of only three or four
dealers left in the country. The time had clearly come to take a stand. It
didn't much matter who the defendant was, defensive action was demanded and
it was taken. Had we not mounted this defense, it is quite possible that
Firefox would have been out of business two and a half years ago and the
CPSC would have its teeth in someone else by now.
6. OK, so where do we go from here?
Good question. First, for the time being, although constrained by
the injunction, Firefox is definitely still in business. By all means
support them with your orders within the constraints imposed by the Court,
and hope that in the longer term they can see their way through this.
Second, the Judge's order (injunction), while Firefox must obey it
immediately, does not become final for 60 days from its date of issuance.
There is the possibility that an appeal might be filed within that time
frame, but many, many questions need to be answered before a decision on
that is made.
Third, exhilarated by their success and in possession of a brand new
hammer provided by Judge Winmill's decision, it is reasonable to suspect
that the CPSC and DOJ have already started looking for another nail to
pound. It only remains to be seen which of the few remaining suppliers the
cross-hairs settle on next. We, as a community, must prepare. Please
continue to support the Fireworks Foundation
(http://www.fireworksfoundation.org) with your donations.
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What Does This Mean to You?
First, making flash powder devices in the US is usually a violation of Federal regulations and law. This means that you can be criminally prosecuted in Federal court for it. And that means you can go to Federal prison for it. Think about it: is the fun of a big bang really worth Federal prison?
Second, the judge's decision in the Firefox case basically means that one of the largest suppliers of pyrotechnic supplies and chemicals is now very severely limited in what they can sell you. Basically, as a source for oxidizers and metal powders finer than 100 mesh, they have dried up. This means you have fewer choices.
Third, the judge's decision applies to Firefox, not to Skylighter. We do not have any restrictions placed upon us as a result of the Firefox case. But we absolutely DO have our own restrictions on sales of M80 components to anyone whom we think may intend to make illegal exploding devices. This is because we will continue to operate legally; we are not going to risk our business to make a few extra bucks. We have no desire to find ourselves in Federal court, nor have the draconian restrictions placed on our sales that Firefox has.
Fourth, Skylighter's restrictions are applied in several ways. If you try and buy flash powder components on our web site, most likely your order will be automatically declined right there on the web site. If you try and split your flash component order up into multiple orders spread over many days, the web site will detect that and will decline your order. If your order history appears to be for flash powder or devices, your orders for flash components will be declined. Any orders that make it through the flash device screening process on our web site are then manually screened by a human being at Skylighter before we allow it to be shipped.
Fifth, trying to stockpile potassium perchlorate and flash grade aluminum will probably backfire on you; you'll just look MORE like you're trying to make M80's. Think about it from our standpoint: If, all of a sudden, you try and order 25 lbs. of potassium perchlorate and nothing else, what do you think we'll think it's for?
The result of all this screening is that Skylighter declines literally tens of thousands of dollars of orders every month. And every time one of your orders is declined, your record here is flagged. If you are declined three times (three strikes), you're then "out." You won't ever be able to buy anything from Skylighter again.
For the umpteenth time, I want to reiterate that the root of the problem is people who make or intend to make illegal flash powder devices. The source of the Firefox case was an illegal flash device sold to an individual who was injured by it. Throughout the trial, flash powder devices were the focus of the government's case. The message is clear: if you want to make flash devices, get an ATF license. And if you don't have an ATF license, don't try and buy components for making M80s or other flash powder devices from Skylighter. Your orders will be declined, and you may be banned for life from ever being able to buy anything from Skylighter, even if it is not flash related.
Harry Gilliam
Chief Cook & Bottle Washer
