Death on a Movie Set: Ex-Prosecutors, Attorneys React to Alec Baldwin’s Shocking Prop Gun Shooting Accident

A deadly shooting on the set of the Alec Baldwin film “Rust” in Santa Fe County, New Mexico, has resulted in a debate among legal minds about the possibility and likelihood of litigation — even as many of the facts of the matter remain shrouded as of the time of this writing.

It remains officially unclear how a prop gun — generally outfitted with blanks — was discharged by Baldwin on a movie set. The gunshot managed to kill cinematographer Halyna Hutchins, 42, and injure director Joel Souza, 48. The accident happened at the Bonanza Creek Ranch, a stereotypical western film set used frequently by production crews on the southern outskirts of Santa Fe.

“We’re trying to determine right now how and what type of projectile was used in the firearm,” said Juan Rios, a spokesman for the Santa Fe County Sheriff’s Office, as quoted by the New York Times.

However, the New York Post, citing Indie Wire, said that a union which represented prop masters learned that a “live round” was fired. The union said its members were not on set and that local “New Mexico crew members” were, according to the reports.

Citing an anonymous eyewitness, the website Showbiz 411 said Baldwin “was in shock but composed” and “kept asking why he was handed a ‘hot gun.'”

“In all my years, I’ve never been handed a hot gun,” Baldwin reportedly said, according to the site.

The site, again citing the eyewitness, claimed the same bullet struck Hutchins first and then injured Souza.

Larry Zanoff, a weapons expert who has provided guns for films but who was not working on the production of “Rust,” told the Times that “television and movie sets prohibit the use of live ammunition on a set” as a general rule. He said staffers usually must remain 20 feet from the muzzle of a movie gun for safety reasons.

“This investigation remains open and active,” Rios said in an Associated Press report. “No charges have been filed in regard to this incident. Witnesses continue to be interviewed by detectives.”

An actor working on another nearby set in the same facility told NBC’s “Today” show that sheriff’s deputies arrived and announced “a live gun discharge” had occurred.

Baldwin reacted to the deadly incident on Twitter.

“There are no words to convey my shock and sadness regarding the tragic accident that took the life of Halyna Hutchins, a wife, mother and deeply admired colleague of ours,” he wrote. “I’m fully cooperating with the police investigation to address how this tragedy occurred.”

“I am in touch with her husband, offering my support to him and his family,” the actor continued. “My heart is broken for her husband, their son, and all who knew and loved Halyna.”

Attorneys are weighing whether any hypothetical litigation will ensue. Most of those surveyed by Law&Crime on Friday morning (before word that a live bullet was the alleged projectile became public) agreed that a civil negligence case seemed more probable than a criminal case. Not all of those who spoke to Law&Crime wished to be quoted for attribution given the paucity of official facts surrounding the incident. However, what follows is a summary of what laws they — and likely other attorneys — are analyzing as the situation unfolds.

The Law&Crime Network’s Julie Rendelman, a New York City criminal defense attorney and former prosecutor, said that New Mexico prosecutors are likely to examine two key statutes when determining whether to file charges against anyone involved in the incident. However, proving them beyond a reasonable doubt may be difficult.

The first, involuntary manslaughter, provides as follows in one subsection (emphasis added):

Manslaughter is the unlawful killing of a human being without malice.[ . . . ]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.Whoever commits involuntary manslaughter is guilty of a fourth degree felony.

However, New Mexico’s powerful excusable homicide statute may provide some cover for anyone charged. The following subsection is most on point:

Homicide is excusable in the following cases:

A. when committed by accident or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent.

The statutes do not conflict: they together require individuals to act with a certain degree of care; acting without it can lead to charges. Any hypothetical criminal case surrounding the deadly incident would turn on the question of what specific acts constitute “caution” and “circumspection” (or “usual and ordinary caution”) under New Mexico law.

Law&Crime Network’s Bob Bianchi, former New Jersey prosecutor, said that manslaughter law generally requires a “conscious disregard” of a risk or risks — and that’s what separates criminal law from an accident.

“What caution and circumspection did Baldwin not follow?” Bianchi asked while thinking through the situation. “Accidents happen,” he surmised while guessing that Baldwin was provided a gun by an expert, was probably told that it was safe, and fired it with the likely belief that nothing dangerous would happen.

Bianchi acknowledged that prosecutors are afforded significant leeway and discretion when deciding whether to file charges. He said that he would not have charged Baldwin had the incident occurred in his jurisdiction while he was a prosecutor — at least on the known facts.

“I do not see criminal intent based on the facts we know right now,” Bianchi said. But he added that he wanted to know more about the safety checks utilized on the movie set, what projectile was officially involved, the rules established and followed, and the training any weapons experts on set were expected to obtain and to follow.

After hearing that a live bullet was apparently in the gun, Bianchi added that whoever left the projectile in the chamber faces more significant legal jeopardy than the actor might hypothetically face.

“Whoever put the bullet and those responsible for inspecting the prop before giving it to the actor are in hot water,” Bianchi said as the facts developed.  “As a prosecutor, I would be looking into whether this was a purposeful act — murder.”

Former federal prosecutor and current CNN legal analyst Jennifer Rodgers echoed some of those thoughts to Law&Crime in a separate yet concurrent conversation.

“There’s a lot we don’t know here about what happened,” Rodgers said. “If Alec Baldwin, as the actor, was handed this gun that was supposed to be filled with blanks and was told, you know, point it in this direction, and say X, Y, and Z, and shoot it, and he did that, it doesn’t seem to me like there’s any possibility that he could meet the the requirements of the New Mexico statutes for that.”

Rodgers raised the possibility that a prop master could be charged for failing to properly “inspect and clean” the gun.

“I know the sheriff’s office is investigating, and ultimately they’ll make a decision with the local prosecutors,” she continued. “But that’s what they’re exploring. What actually happened here?  Were bullets actually expelled? Was it fragments from a prior usage? Who was in charge of making sure that that gun was ready to go? Those those sorts of things will have to be sorted out, and that’s what we don’t know.”

Rendelman also keyed in on another New Mexico statute which involves the negligent use of a deadly weapon. One section of that law forbids “endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner.”  The offense, if proven beyond a reasonable doubt, is a “petty misdemeanor.” The punishment is a period of incarceration “in the county jail for a definite term not to exceed six months or to the payment of a fine of not more than five hundred dollars ($500) or to both . . . in the discretion of the judge.”

Any hypothetical case filed under that law may raise questions about whether a prop gun — the design of which remains unclear right now — would constitute a “firearm or other deadly weapon” under New Mexico’s statutes, some observers said. The latter term (“deadly weapon”) is defined in another section of state law as to include “any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm . . . or any other weapons with which dangerous wounds can be inflicted.”  The full definition is rather lengthy:

B. “deadly weapon” means any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapons with which dangerous wounds can be inflicted.

Aggravated battery would likely be difficult or impossible to prove beyond a reasonable doubt. New Mexico law requires prosecutors to prove an “intent to injure” in order to secure a conviction for aggravated battery. Battery requires a showing that a defendant acted in a “rude, insolent or angry manner” and is similarly difficult given the facts of the case.

Rodgers suggested that a civil case would be much more likely than a criminal action.

“The civil negligence standard is lower than the criminal standard,” she said. Depending on how the facts play out, someone on set likely “did something that is unreasonable and was not within the duty of care . . . so, without, question, I think there will be a lawsuit filed either by the estate of the the woman who was killed, by the person who was injured, and you’d expect them to sue everyone . . . the prop master, maybe even Alec Baldwin . . . everyone up the chain, because at some point here, there’s no question that there was negligence” on the current facts — which could be clarified as the investigation unfolds.

Adam Klasfeld contributed to this report with an interview of Jennifer Rodgers.

[Photo by Sam Wasson/Getty Images]