Is it any big surprise that Alec Baldwin will be charged with two counts of involuntary manslaughter? Well, despite his inability to remain silent in the face of having killed someone, it is a surprise.
He told detectives he had been assured the gun he was rehearsing with that day did not contain live ammunition, sat down for an extensive television interview, sought indemnification from financial liability in the case and then sued crew members on the film, claiming that they were responsible for handing him a loaded gun.
Baldwin also told detectives that he didn’t pull the trigger and has no idea why the gun fired. Whether that’s a possibility or defies the laws of physics is an argument for another day. The point is that 42-year-old cinematographer Halyna Hutchins was shot to death and Baldwin was the guy with the gun that, unintentionally, killed her.
B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.
But not just any old negligence, of the sort that we’re familiar with from civil cases. Rather, it has to be “criminal negligence,” which is defined in New Mexico as “willful disregard of the rights or safety of others”—what some other states might call “recklessness”:
In New Mexico, “the State must show at least criminal negligence to convict a criminal defendant of involuntary manslaughter.” Because involuntary manslaughter is an unintentional killing, we only attach felony liability where the actor has behaved with the requisite mens rea. This Court has made clear that the criminal negligence standard applies to all three categories of involuntary manslaughter. Criminal negligence exists where the defendant “act[s] with willful disregard of the rights or safety of others and in a manner which endanger[s] any person or property.” We also require that the defendant must possess subjective knowledge “of the danger or risk to others posed by his or her actions.” [Emphasis added.]
Say, then, that the prosecution can show that Baldwin pointed the gun at Hutchins and pulled the trigger, but carelessly believed (without checking this for himself) that it was unloaded.
This sort of nuanced distinction send chills down the spine of academics and appellate judges seeking cover, but does it matter? Is there any way, under any circumstances, that a person holding a gun that fires and kills someone cannot be guilty of involuntary manslaughter even though it was nothing more than the end result of a series of negligent decisions?
When someone holds a gun, can they be unaware that it’s a gun? They may believe that it’s just a prop gun, maybe modified so as to be incapable of firing a live round, but can they rely on what someone else, in a case like this the set armorer, told them? And if it’s a gun, can they be unaware that it has the potential to fire a live round even if they’ve been told that it’s unloaded or loaded with a dummy round for movie set use?
The caselaw speaks to the subjective knowledge of the defendant of the danger the gun poses to others. Thus, if Baldwin relied on what he was told by the armorer, someone who was expected to possess far greater knowledge of such things as guns, believed that the gun posed no risk, even though he didn’t personally check to see that it was either non-functional or not loaded with a live round, his negligence could not, as a matter of law, rise to the level of criminal negligence (if negligence at all).
But this was a gun. Obviously, an operational gun. Obviously, an operational gun loaded with a live round. And this gun, in the hands of Alec Baldwin, killed Halyna Hutchins. It would not offend too many gun people to impose an affirmative duty on any person, whether actor in a movie or otherwise, to check every time under every circumstances no matter what an armorer says, whether the gun is loaded. Not only does this seem to be the best practice, but one that imposes little burden when contrasted with the death of a human being.
But until that rule is established such that violation of it will result in the imposition of criminal sanctions, is there anything that Baldwin did or didn’t do that rises to the level of a crime rather than ordinary negligence? After all, someone put a live round into a gun being used in a movie, and it wasn’t Baldwin. Isn’t that a more meaningful lynchpin of recklessness?
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RIP Dave.
Amen.
The first rule of gun safety is that all guns are always loaded, *at least* unless and until you’ve personally verified that it isn’t. That goes double when you’re going to be pointing it at people and pulling the trigger, and do not in fact want to kill them. Was Baldwin negligent? Hell yes, he was. But criminally negligent is a harder call.
But where did the live round come from? There shouldn’t have been any live ammunition around to get into the gun in the first place. That doesn’t eliminate, or even mitigate, Baldwin’s negligence, but it does seem like the elephant in the room.
The article I saw said that five(?) more live rounds were found around the prop room, some intermingled with fake rounds. If they know how those rounds got there they didn’t say.
Authorities also said there was no indication that the crew was shooting stuff in the desert during downtime.
Details matter.
Were the cast and crew plinking cans together in their downtime between takes?
Was this the 27th time they were re-filming this scene, trying to get it perfect?
They weren’t filming. They were tech-blocking the scene for camera angles. A rubber gun would gave been adequate.
While many firearms owners will be happy Baldwin has been charged due to his smugness about Second Amendment issues, I’m not. I don’t know him, but I’d like to think that he carries the death of Halyna Hutchins’ death with him every day. It is a stain that will always be with “The Man Who Killed Halyna Hutchins.”
But I understand the state’s need to prosecute him as well as the crew members for their abject carelessness.
Baldwin did not rely on what the armorer told him, because the armorer was not there. He relied on what the assistant director told him. No responsible person, exercising an ordinary degree of caution, should take another person’s word that a firearm is unloaded, much less some art theater major. No responsible person should point a firearm directly at another person if there’s any way it can be avoided. No responsible person should have their finger on the trigger if they don’t intend to fire. A person who does all three at the same time is absolutely reckless.
The DA told CNN that she believes the industry standard is the gun must be checked by or in front of the person using it on set. If the state proves that was the standard and Baldwin was aware of it (especially if he was aware of the prior accidental discharges), you’re right that it wouldn’t be objectively or subjectively reasonable to rely on the assistant director saying it was safe.
I’m not convinced it matters what the industry standard is, if that standard is so far removed from what is considered acceptable practice by literally everyone outside the criminal underworld that uses firearms: the NRA, every branch of the military, every police department, the Boy Scouts, every state DNR hunter safety course.
Imagine if there were an industry in this day and age, where they considered it standard practice to use asbestos as a coffee creamer. The dangers of asbestos are widely recognized every by the lay public, every other industry and organization would consider this unconscionable. Would members of this industry be allowed to feign ignorance of the universal standards and rely on their own instead?
What is this ‘Boy Scouts’ that you speak of? I believe that they no longer exist.
It was once a decent organization, where I learned proper rifle safety. I just wish I’d learned I needed glasses *before* trying to qualify for the merit badge…
And while the wider firearm world considers not treating every weapon as loaded and deadly unless inspected and proven otherwise, it’s my understanding the law is far more concerned with the actual standards of the industry in question. (where we should be asking what live ammunition was doing on the set, and why care wasn’t taken to keep it from getting mixed in with the blanks).
Without limitation? If Hollywood decides tomorrow that 3 year-old child actors don’t need adult supervision the way other 3 year-olds do, or finds that cadmium oxide is great for making makeup last longer under hot lights, are the courts bound by that determination?
This was not Baldwin’s first performance with firearms. Although he tries to paint himself a clueless neophyte, the Internet Movie Firearms Database shows he had been in eighteen movies and four television shows wherein he used firearms. Oddly, the database also shows the pistol he was supposed to use in Rust was a1917 Army Model, quite different from the revolver with which he was rehearsing.
I don’t see how they possibly get to criminal negligence. Actors must rely on the experts for a wide variety of dangerous conduct in order to replicate realism: explosions, car crashes and a long line of other stunt work (including countless shoot outs).
Getting a jury to agree beyond a reasonable doubt that this is all on the actor is a losing argument.
If we believe Baldwin, he wasn’t the one who loaded the live round, and the state likely has no proof of who loaded it, so they have to assume it wasn’t him for charging purposes. A very troubling facet of all this remains that Baldwin cocked, pointed and fired the gun when (according to the script supervisor) none of these actions were in the script for the scene they were blocking. Assuming Baldwin can blame the armorer and assistant director for everything else, he can’t blame them for the unscripted actions he alone took, without which, the killing could not have occurred.
Actors don’t always follow the letter of the script – – they often improvise and experiment, particularly in rehearsals. Depending on what the Director allows.
So if I were a prosecutor, I certainly would not want to hang my hat on what the script explicitly states.
Isn’t it still the actor’s volitional conduct? How often actors depart from the script is beside the point.
Sure, but what was the conduct he thought he was taking?
Context matters.
If this were at a gun range where real guns with real ammo were the norm and rules were violated, it would be a very different set of circumstances.
But this was a movie set, which no one would assume would have a real gun with real ammo being pointed at anyone.
To a gun owner, that it happened is clearly negligence, by definition.
Baldwin’s? Hard to believe given what I’ve seen thus far — had the armorer been there and told him it was clear for use, it seems from others that this would be clear cut.
It seems as if Baldwin could rely on someone else (the armorer) and not need to ensure it was real on his own, because he’s not a firearms expert any more than actors are explosives experts or medical experts for a variety of actions they take on a set.
The only possible avenue for pinning negligence on Baldwin would appear to be whether as an actor he knew, or should have known if he could trust the individual that handed it to him. If the standard for actors in this type of situation is that he should have said, wait — I need sign off from the proper authority before using this prop, I’d have different concerns.
If he should have known to wait for the armorer and the armorer wasn’t there, I could envision some sort of negligence on Baldwin’s part.
But legal negligence? I’ll leave that to those that are far more experience to comment.
As noted above, the #1 gun safety rule is, “Treat all guns as loaded until you have personally confirmed otherwise”. The #2 rule is, “Never let the muzzle cover anything that you are not willing to destroy”.
I’ve read, but not confirmed, that the SGA has rules that call for any actor who will be handling a firearm on set to take a firearm safety test. The above would be covered in any such class.
The #3 rule is, “Never put your finger on the trigger until you are ready to shoot”. IIUC, Baldwin is claiming that his thumb slipped, while he was cocking the revolver for dramatic effect, and the hammer fell forward striking the primer. While this is not impossible, it’s very unlikely. One could, I imagine, duplicate what he’s claiming to have happened, but I believe he pulled the trigger.
Another possibility is that Baldwin cocked the gun. Then, w/ his finger on the trigger, tried to ease the hammer down, and it then slipped. This is what many people, including many regular shooters, would likely do, and IMO a better bet than his own claim.
I don’t know the law w/ rgd to this, but among regular shooters, I believe one would find near unanimity that this was negligence. (Even if it weren’t Alec Baldwin’s actions being discussed.)
W/ rgd to the late Mssr. Crosby. I loved his music and found many of the interviews that I’d heard him give, over the years, especially interesting and informative. Tying this all together, Crosby was shooter, a big fan of the 1911, and had been arrested for firearm violations. I know people that shot w/ him and they said that he was a good shot and demonstrated good gun handling. The latter is the the more important consideration. As the late, lamented Paul Gomez (a firearm instructor of some note) observed, “I could probably teach a monkey to shoot. Weapon handling is where the real skill lies”.
Crosby was also a sailor. So, “Fair winds and a following sea”.
While I appreciate the thought experiment about whether any accidental discharge of a firearm could be considered anything other than “criminal negligence,” the fact pattern here supports such negligence. Any person who takes a firearm, cocks it, and pulls the trigger without verifying that it is unloaded is acting with complete disregard for the safety of others. The first two rules of firearm safety make this completely clear. And if someone is ignorant of those rules, then handling a firearm at all is reckless beyond belief.
Further, to do this within 3 feet of another human being while pointing the gun at them is so astonishingly reckless as to remove all doubt. Blank rounds can kill at that distance. There’s no excuse for not personally verifying that a firearm is unloaded before doing any of that. Even more so with a revolver, which you can visually check in less than 2 seconds.
I’ve been handed a pistol by a close friend to demo different trigger weights. He told me it was unloaded. I personally saw him remove the magazine. I *still* checked to see that it was unloaded, including checking the chamber, before pulling the trigger. It’s just what you do.
From what I have seen on firearms blogs, NM law more or less required charging Baldwin and Gutierrez Reed with involuntary manslaughter regardless of feels.
Regarding guns and gun handling, the single action revolver was tested in an FBI lab and could only fire if the trigger was pulled. Next point is that after the deaths of John Eric Hexum and Brandon Lee in on set firearms accidents Hollywood developed a strict code for handling guns and ammunition on set to mitigate violations of the four rules of gun safety.
Under Alec Baldwin’s direction and control as executive producer the Rust cast and crew blatantly violated that code by using prop guns for plinking and not only having live ammunition on set but carelessly mixing live ammunition with blanks. This culture of negligence is going to make the civil suits a slam dunk and probably make the manslaughter charges stick.
I believe that the responsible parties going to jail would be good thing because they blatantly violated established practices. That Baldwin is loudly and vehemently anti gun rights is bonus schadenfreude.
The facts are irrelevant. If you’re a Democrat, he’s innocent. Republican, guilty.
Voir dire will be interesting.
Let’s say actors are required to personally check and see if a gun is loaded. That inevitably leads to another question: Loaded with what? Even a gun loaded with blanks is not risk-free. Just ask Jon-Erik Hexum’s family.
If actors are required to check to see whether guns are loaded, are they also required to see if prop swords are sharp? Prop knives have blades that retract with the slightest pressure?
In addition to the highly questionable charging decision, it has been pointed out on The Twitters that Sante Fe DA is also a Hannitystan. Baldwin has not exactly ingratiated himself to that segment of the population which gets weak in the knees when the Christian name of Darth Cheeto is uttered in their presence. Was this mere charging discretion, politics, or, like the chili in New Mexico, a little bit of red and a little bit of green?
I believe that the same prop master was involved with an incident with Nicolas Cage, who went off (figuratively) when he found a live round in a ‘prop’ gun. Baldwin may have pulled the trigger, but I think the prop master has a lot to answer for.