Is it a felony to shoot Tannerite for fun on private property in Virginia?

Plain-English summary

The Chesterfield County Commonwealth's Attorney asked whether the recreational use of Tannerite violates Virginia's explosives statute. Tannerite is the brand name of a binary explosive sold widely in sporting goods stores as a shot indicator for rifle practice. The user mixes two powders, places the mixture downrange, and shoots at it with a high-powered rifle. The resulting detonation is visible (and audible) confirmation of a hit. In Chesterfield, residents had been using Tannerite on private property with permission, and the resulting boom-heard-for-miles had made neighbors uncomfortable. The question was whether the use itself was a felony under § 18.2-85.

AG Herring's answer was a no with significant footnotes.

Tannerite is an "explosive material" under § 18.2-85. The statute defines that term broadly: "any chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive agents or other ingredients in such proportions, quantities or packaging that an ignition by fire, friction, concussion, percussion, detonation or by any part of the compound or mixture may cause a sudden generation of highly heated gases." Tannerite, once mixed and detonated by a rifle bullet's concussion, fits squarely. A federal court in Kansas had reached the same conclusion in United States v. Leeper.

But the "lawful purpose" qualifier in § 18.2-85 protects recreational use. The statute carves out: "Nothing in this section shall prohibit the authorized manufacture, transportation, distribution, use or possession of any material, substance, or device . . . for scientific research, educational purposes or for any lawful purpose, subject to the provisions of §§ 27-97 and 27-97.2." Recreational use of a product designed and marketed for recreation falls within the plain meaning of "lawful purpose." The opinion compares Tannerite to other substances that meet the literal definition of "explosive material": gunpowder, black powder, butane, match heads, paint thinner, gasoline. The opinion says those substances may be possessed legally in the absence of illegal acts or intent.

Whether a specific use is illegal is a question of fact. This is a standard AG-opinion limit: the office does not adjudicate fact-bound questions. In Flanagan v. Commonwealth, the defendant possessed acetone peroxide, sulphuric acid, hydrogen peroxide, acetone, fuses, and an assault pistol, said he "just liked to hear things go boom or bang," and was convicted because the totality showed bomb-making, not recreation. The opinion contrasts the facts of that case with the recreational use described in Chesterfield.

Other laws may still apply. Three caveats worth noting:

• Noise and peace. The opinion explicitly notes that even if the Tannerite use is not a § 18.2-85 felony, the noise might violate local noise ordinances or disturbing-the-peace statutes. The opinion says a noise-related misdemeanor would not by itself make recreational use a § 18.2-85 felony.
• Zoning. The opinion does not decide whether any particular zoning ordinance applies. Check local rules before use.
• Fire Prevention Code. The Statewide Fire Prevention Code (13 VAC § 5-51-11 et seq.) places limits on the possession, storage, and use of explosive materials and fireworks. Commercial possession, storage, or use of Tannerite, or possession of large quantities, may be subject to the Fire Prevention Code; permits may be required in those cases. The opinion says the regulations do not apply to the described recreational use. It says commercial use or large quantities may be regulated, and permits may be required in those cases.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 18.2-85, the Statewide Fire Prevention Code, and various local noise and zoning ordinances may have been amended since 2014. The opinion does not address federal explosive-material rules. Anyone using Tannerite today should check both the current state-law framework and applicable local ordinances, and consult counsel before any commercial or large-quantity use.

Common questions

What is Tannerite chemically?
The opinion describes Tannerite as a binary explosive sold as a shot indicator. It says two powders are mixed and the mixture detonates when hit by a high-powered rifle bullet. It does not identify the powders or analyze federal regulation.

Is Tannerite legal to buy in Virginia?
The opinion says similar binary explosives were sold in large sporting goods chain stores in 2014. It answers whether possession or use for the described lawful recreational purpose violates § 18.2-85; it does not survey sales rules.

Could a neighbor sue over the noise?
The opinion does not address civil remedies. It leaves possible noise or zoning violations undecided.

Does the lawful-purpose defense have to be raised by the defendant?
Flanagan v. Commonwealth held that the absence of a lawful purpose is not a negative element of the § 18.2-85 offense; the presence of a lawful purpose is an affirmative defense. The opinion does not set out the trial burden for that defense.

What about a big charge to remove a tree stump or rock?
The opinion does not address blasting for land clearing. Its conclusion concerns the described recreational use; footnote 4 says commercial use or large quantities may be regulated by the Statewide Fire Prevention Code.

Can law enforcement still charge someone using Tannerite if they think it's a problem?
The opinion concludes that the described recreational use alone is not a § 18.2-85 felony. It leaves the legality of particular conduct to the facts and does not decide possible misdemeanor violations.

What if I'm using Tannerite at a commercial range?
Commercial possession, storage, and use can fall within the Statewide Fire Prevention Code's permit and storage rules. Check the Fire Prevention Code for the proposed use and any required permit.

Background and statutory framework

• Va. Code § 18.2-85: Defines "explosive material" broadly; makes manufacture, transportation, distribution, possession, or use a Class 5 felony, "unless for a lawful purpose."
• Va. Code §§ 27-97 and 27-97.2: Relate to the Virginia Statewide Fire Prevention Code.
• 13 Va. Admin. Code §§ 5-51-11 through 5-51-155: Statewide Fire Prevention Code provisions.
• 13 Va. Admin. Code § 5-51-150: Permit and storage requirements for explosives and fireworks.

The interpretive moves:

• Tannerite fits the broad statutory definition of "explosive material."
• "Any lawful purpose" includes recreational use of a product designed for recreation.
• The same logic protects everyday substances like gunpowder and gasoline from felony charges.
• Specific cases turn on specific facts (compare the Flanagan bomb-making facts to ordinary recreational use).
• Other regulatory regimes (Fire Prevention Code, noise and zoning ordinances) remain available.

Citations

• Va. Code § 18.2-85
• Va. Code §§ 27-97, 27-97.2
• 13 Va. Admin. Code §§ 5-51-11 through 5-51-155
• United States v. Leeper, 2006 U.S. Dist. LEXIS 87193 (D. Kan. 2006)
• Barr v. Town & Country Props., 240 Va. 292, 396 S.E.2d 672 (1990)
• Watkins v. Hall, 161 Va. 924, 172 S.E. 445 (1933)
• Flanagan v. Commonwealth, 58 Va. App. 681, 714 S.E.2d 212 (2011)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-044_Davenport.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

October 1, 2014

The Honorable William W. Davenport
Commonwealth's Attorney
Post Office Box 25
Chesterfield, Virginia 23832

Dear Mr. Davenport:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the recreational use of Tannerite violates § 18.2-85 of the Code of Virginia. In relevant part, that statute makes it a Class 5 felony to use or possess an explosive material, unless for a lawful purpose.

Response

Tannerite, like many other substances, is an explosive material within the meaning of § 18.2-85 of the Code of Virginia, but its use or possession is not illegal so long as the use or possession is for a lawful purpose such as the recreational use for which it is intended. Whether any particular use or possession of Tannerite is for an illegal purpose would be a question of fact about which I can express no opinion.

Background

Tannerite is the brand name of a binary explosive that is marketed as a shot indicator for firearms practice.[1] Other binary explosives that are similar to Tannerite are sold under different brand names. They are in common use and are sold by large sporting goods chain stores. Binary explosives are supplied as two separate powders. After the powders are mixed, they will detonate when hit with a bullet from a high-powered rifle.[2]

In your request, you indicate that Tannerite has been used in Chesterfield County on private property with the consent of the property owner and also by the property owner. You relate that when it is shot with a high-powered rifle, it produces an explosion that can be heard for miles and has made nearby homeowners concerned.

Applicable Law and Discussion

Section 18.2-85 provides, in relevant part, that "[a]ny person who . . . (ii) manufactures, transports, distributes, possesses or uses a fire bomb or explosive materials or devices shall be guilty of a Class 5 felony." It defines "explosive material" as:

[A]ny chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive agents or other ingredients in such proportions, quantities or packaging that an ignition by fire, friction, concussion, percussion, detonation or by any part of the compound or mixture may cause a sudden generation of highly heated gases.

As described above, Tannerite is a product made up of two chemical compounds that a user mixes together to form a combined powder. This combined powder is then ignited by the concussion of a shot from a high-powered rifle, causing a sudden generation of highly heated gases. Accordingly, Tannerite constitutes an "explosive material" as defined in § 18.2-85.[3]

Although § 18.2-85 generally prohibits the use or possession of explosive materials, that use or possession is not a violation of the statute if done with a lawful purpose:

Nothing in this section shall prohibit the authorized manufacture, transportation, distribution, use or possession of any material, substance, or device . . . for scientific research, educational purposes or for any lawful purpose, subject to the provisions of §§ 27-97 and 27-97.2.[4]

While "any lawful purpose" is not further defined in § 18.2-85, recreational usage fits the ordinary and plain meaning of that phrase.[5] Therefore, possession or use of Tannerite for a recreational purpose alone, in the absence of other circumstances, is not illegal. In this regard, Tannerite is no different from any number of other substances, such as gunpowder, black powder, butane, match heads, paint thinner, or gasoline, that meet the literal definition of "explosive material," but that may be possessed legally in the absence of illegal acts or illegal intent.[6]

While the use of Tannerite for its intended recreational purpose on private property, in the absence of other facts tending to show illegal intent, is thus not a felony violation of § 18.2-85, I express no opinion about whether such use might comprise a misdemeanor violation of other statutes or ordinances such as disturbing the peace or any applicable zoning or noise ordinances.[7]

Conclusion

It is therefore my opinion that while Tannerite is an explosive material within the meaning of § 18.2-85 of the Code of Virginia, its use or possession is not illegal so long as the use or possession is for a lawful purpose, such as the recreational use for which it is intended. Whether any particular use or possession of Tannerite is for an illegal purpose would be a question of fact about which I can express no opinion.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] http://www.tannerite.com/.

[2] Id.

[3] See also United States v. Leeper, 2006 U.S. Dist. LEXIS 87193, 1, 7 (D. Kan. 2006) (describing Tannerite as an "explosive material").

[4] Section 18.2-85. Sections 27-97 and 27-97.2 relate to the Virginia Statewide Fire Prevention Code, contained in 13 Va. Admin. Code § 5-51-11 through 13 Va. Admin. Code § 5-51-155. Although these regulations do not apply to the factual scenario you describe, they do place limits on the possession, storage, and use of explosive materials and fireworks. See 13 Va. Admin. Code § 5-51-150. Commercial possession, storage, and use of Tannerite, as well as persons possessing, storing, or using large quantities of Tannerite, may be subject to Virginia Statewide Fire Prevention Code regulations. If that is the case, certain permits may be required in order to meet the statutory requirements.

[5] Statutes are to be interpreted according to their plain language, for "'[w]here the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.'" Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1933)).

[6] It has been held that the absence of a lawful purpose is not a negative element of the offense of unlawfully possessing explosive materials; and instead, the presence of a lawful purpose is an affirmative defense. Flanagan v. Commonwealth, 58 Va. App. 681, 699, 714 S.E.2d 212, 220 (Va. Ct. App. 2011). The facts of that case, however, involve a defendant's possession of acetone peroxide, sulphuric acid, hydrogen peroxide, acetone, fuses, and a .223 caliber assault pistol (collectively, evidence that the defendant was making bombs), and his statement that he purchased some of the materials for making explosives because "he just liked to hear things go boom or bang." The case is thus clearly distinguishable from the facts you relate, which entail the possession of a recreational material that is being used on private property for its intended recreational purpose.

[7] Even if the noise generated by recreational use of Tannerite does give rise to a misdemeanor violation of some other statute or ordinance, that fact alone would not make its use a felony violation of § 18.2-85, for the actual purpose of using it would still be recreational, which is a "lawful purpose" under the statute.