Posted on 10/24/2021 8:34:31 PM PDT by texas booster
Hey folks, I’m Attorney Andrew Branca, for Law of Self Defense.
Today I’d like to share with you a tragic story out of New Mexico involving the actor Alec Baldwin (perhaps best known for his small but powerful role in the 1992 movie “Glengarry Glenn Ross”—“coffee is for closers!”—and his long-standing role as boss Jack Donaghy on the television program “30 Rock.”)
I’ll briefly quote from a New York Times story on the event:
Alec Baldwin discharged a prop firearm on the set of a Western he was making in New Mexico on Thursday, killing the film’s director of photography and wounding the movie’s director, the authorities said.
The cinematographer, Halyna Hutchins, 42, was killed, and the director, Joel Souza, 48, was injured … . The circumstances of the shooting are under investigation.
It’s separately reported that Alec Baldwin was also a co-producer of the movie.
Was This An Accident? Negligence? Recklessness/Involuntary Manslaughter?
I’ve received a veritable tsunami of inquiries as to my take on this tragedy, in the context of the fatal force involved—Alec Baldwin’s firing of the gun in his hand, with fatal results—presumably without any actual intent to kill the victim, Ms. Hutchins.
Could this shooting death be characterized as an accident? In fact, there is a legal defense of accident, much like there is a legal defense of self-defense for cases of intentional shootings, and both are “perfect” defenses—meaning, if accepted by legal process, the legal defense of accident frees the person of all legal liability (both criminal and civil).
So, perhaps this was an innocent accident, in the legal sense, and Alec Baldwin ought to bear no legal responsibility, either criminally or civilly, for the death of Ms. Hutchins.
On the other hand, perhaps this shooting death is more accurately characterized as negligent, or perhaps even reckless—and if reckless, then certainly as involuntary manslaughter, which New Mexico law defines (in the context of this case) as an unlawful killing committed “in the commission of a lawful act which might produce death … without due caution and circumspection.”
Under New Mexico law involuntary manslaughter is a fourth-degree felony normally punishable by up to 18 months in prison and a $5,000 fine.
The most common form of involuntary manslaughter committed generally is drunk driving resulting in a fatality, but of course a firearm being handled lawfully but “without due caution and circumspection” that results in a death fits the statutory definition equally well.
So, in the shooting death of Ms. Hutchins by Alec Baldwin, are we looking at an accident, free of legal liability, or an act of negligence carrying civil liability, or a criminally reckless killing (an involuntary manslaughter) good for a felony prison sentence? What factors do we consider in distinguishing between accident and negligence and reckless killing?
To be clear, our goal here is not necessarily to arrive at a definitive legal answer—I’m not sure we really know enough facts with enough certainty to do that.
But if we can’t immediately arrive at the right legal answer, at the very least we can understand how to ask the right legal question—and that’s what we’ll do right here, right now.
Legally speaking the defense of accident applies when the harm caused could not have been foreseen by the person who caused the harm, and who was otherwise acting in a normal and non-negligent manner.
For example, imagine that your elderly aunt asked you to move a heavy plant from one side of her apartment to the other. You carry the plant to the new spot, place it on the floor—but unknown, and unknowable, to you, the floor joists in that spot are rotten. The plant falls through the floor, lands on the head of your aunt’s neighbor downstairs, and kills the neighbor.
Because you were acting in a normal and non-negligent manner, and could not have foreseen that the floor joists were rotten, the death that results from your admitted conduct was a genuine accident in the legal sense, and as a result you have no legal liability for the death that resulted. As the saying goes, poop happens.
Negligence Creates Civil Liability
Liability is acquired, however, if you were acting negligently when you caused the harm.
For example, imagine that you were driving down a neighborhood road with a speed limit of 25 miles per hour. You’re in a bit of a hurry, however, so you’re driving at a solid 35 miles per hour. There’s no reason for you to think, and you don’t think that you’re creating any exceptional risk by driving a bit over the speed limit—heck, plenty of the people in the neighborhood do so all the time. Suddenly, however, a child dashes out into the street, and that 10 miles per hour over the limit is what prevents you from stopping before your vehicle hits and kills the child.
Here you were not acting in a normal and non-negligent manner. We all have a generalized legal duty to not cause unjustified harm to others. Your intentional disregard of the stated speed limit violated that legal duty, even though you did not know you were creating an exceptional risk of death.
By violating that generalized legal duty to not cause harm to others you were acting negligently, and your negligence means that you’ve acquired at least civil liability for the death you caused by your negligent conduct.
The parents would presumably sue you for wrongful death in civil court, and win a judgment as the result of your negligent conduct.
Recklessness Creates Criminal Liability
Even then, however, you don’t necessarily have criminal liability for the child’s death. Criminal liability requires more than mere negligence—the failure to meet a duty to not cause harm.
Criminal liability requires recklessness.
Recklessness occurs when you not only violate a legal duty to not cause harm, but you explicitly know you are doing so, and you intentionally disregard that risk.
To put it another way, you are creating a risk of death or serious bodily injury, are aware that you are doing so, but choose to disregard the risk and continue with your conduct regardless. And the bad outcome occurs.
The classic illustration for criminal recklessness causing death (often labeled involuntary manslaughter) is the drunk driving fatality mentioned above.
You know (as we all know, so it is “common knowledge” in legal terms) that driving while intoxicated creates a risk to others of death or serious bodily injury. When you become voluntarily intoxicated and operate a motor vehicle you are aware of the risk you are creating, and you are choosing to disregard that risk.
Should a death result, your recklessness makes that not an accident or even mere negligence, but a crime—involuntary manslaughter.
Note there is no requirement that the death be intentional. The person driving home drunk isn’t intending to kill anyone—they just want to get home. Indeed, were the death intentional we’d be talking about murder or voluntary manslaughter, and not involuntary manslaughter based on recklessness rather than intent.
I am, of course, as presumably we all are, working under the assumption that Alec Baldwin did not intend the death of Ms. Hutchins. That lack of intent, however, does nothing to diminish potential liability for the crime of involuntary manslaughter.
So What Was It? Accident, Negligence, or Recklessness?
So, with that legal foundation in mind, what can we make of Alec Baldwin’s shooting death of Ms. Hutchins? Could it have been an innocent accident? Or is it merely civil negligence? Or is it criminal recklessness, and involuntary manslaughter? The answer will, of course, depend on what the facts are ultimately turnout to be, but we can certainly explore the range of outcomes that would be on the table.
Innocent accidents can happen with firearms, but they are rare — and the reason they are rare is that firearms are recognized legally as inherently dangerous instruments, and therefore the standard of care for handling them is very high.
Accident: What That Would Look Like In This Case
What might an genuine accident with a handgun look like? Well, imagine a gun that has an unseen defect, such that when the barrel is brought up to the horizontal position the gun discharges without any press of the trigger.
This is clearly not how a gun is supposed to fire, nor would any reasonable person expect a gun to fire under such circumstances.
If the gun being handled by Alec Baldwin is found to have such a defect, and his handling of the gun was otherwise non-negligent, he would have a good argument that the gun discharging and killing Ms. Hutchins was a genuine accident for which he should bear no civil or criminal liability.
Negligence: What That Would Look Like In This Case
On the other hand, a defective gun doesn’t necessarily mean there was no negligence involved, and if there is negligence there cannot be an innocent accident and zero legal liability—there must, at least, be civil liability.
In our hypothetical with the defective gun, for example, it may be true that the discharge of the gun was not foreseeable by Alec Baldwin, and therefore not really in his control—but the direction in which the gun was pointed certainly was in his control.
The death of Ms. Hutchins by the discharge of the gun could not have occurred had the gun not been pointed at her — and that pointing of the gun at her would certainly seem to constitute negligence.
Anyone trained in firearms safety—and anyone handling an inherently dangerous instrument like a firearm can be reasonably expected to have a duty to be trained on its safe operation around others—would know that one of the four primary safety rules of handling firearms is that you do not point the muzzle of the gun at anything you are not willing to destroy.
Pointing the gun at Ms. Hutchins then, at least under circumstances in which the gun discharges and kills her, would certainly qualify as negligence at a minimum, and thus create civil liability for her death.
Recklessness: What That Would Look Like In This Case
But the potential liability doesn’t end there, because we must also consider the possibility that the killing was the result not of innocent accident, and not merely of civil negligence, but rather the result of criminal recklessness.
Let’s change our hypothetical to remove the defect from the gun. Now the gun operates normally, and will not discharge unless the trigger is depressed. Imagine also that some of the news reporting of this event accurately describes the discharge of the weapon as follows.
Let me be clear — I have no idea if what I’m about to describe will turn out to accurately describe the events in this case. I read such a description of the events online, but have no idea if the person providing that description has any idea what they are talking about. Here we’re using that description of events not as a claim that they represent what actually happened, but merely as a hypothetical to explore the legal issues that could arise in this case.
The day was running long, the actors and crew were getting tired, another scene had to be shot yet again, and in an effort to add some levity to the circumstances Alec Baldwin, holding a firearm in his hands that he believed to be unloaded, jokingly told the director of photography Ms. Hutchins and director Joel Souza, “We have to shoot that scene again? How about if I just shoot you both, instead.” He then points the firearm at them and depresses the trigger, resulting in the gun discharging, killing Ms. Hutchins, and wounding Mr. Souza.
In that last hypothetical we have no innocent accident, and we have no mere civil negligence—instead, we have, with the pointing of the weapon at the victims and the deliberate press of the trigger, criminal recklessness.
The gun did not go off for unforeseeable reasons, such as a hidden defect. The gun discharged because it operated as designed—to fire when the trigger is depressed. Of course, the gun must be loaded when the trigger is depressed in order to cause harm—but as the tragic consequences here amply demonstrate, the gun was loaded. It would be the duty of the person wielding the gun to ensure it was unloaded if they wished to cause no harm when they depressed the trigger—and clearly that duty was not met.
Second, anyone handling an inherently dangerous object such as a firearm would be presumed to possess the safety knowledge needed to handle that firearm safely around others — a claim of ignorance is no defense when one is handling inherently dangerous objects.
That guns are inherently dangerous is common knowledge presumed to be known to everyone. That the rounds fired come out of the muzzle and travel with lethal force and distance is also common knowledge presumed to be known to everyone. That guns discharge when their triggers are depressed is also common knowledge presumed to be known to everyone.
Because the various common knowledge just described would be presumed to be known to everyone, including Alec Baldwin handling the firearm, when he pointed the weapon at Ms. Hutchins and pressed the trigger (again, speaking solely within the context of our hypothetical, not as a claim of what actually happened), then he was necessarily aware of the risk of death he was creating, and deliberately disregarding that risk, with the result being the death of Ms. Hutchins. (The same would apply, of course, to Alec Baldwin’s violation of the gun handling safety rule of presuming at all times that a gun is loaded.)
When you are aware you are creating a risk of death, deliberate disregard that risk, and death results—that’s the very definition of criminal recklessness—commonly referred to as involuntary manslaughter.
Implications of Baldwin as Both Shooter and Producer
By the way, before I move on to discussing criminal recklessness, there’s another factor in this tragic event that will likely play a role in civil liability, and perhaps criminal liability, if any, for Alec Baldwin.
So, Alec Baldwin was both the actor handling the firearm when it discharged—and an actor might argue that he is at the “bottom” of the safety responsibility ladder for something like a movie set—but he was also a co-producer for the film—which would place him at the “top” of the safety responsibility ladder.
In theory, an actor at the “bottom” and the producer at the “top” might each point their finger at each other in the case of a tragic event like this. That is, the actor might argue that the producer ought to have had better safety protocols in place, and the producer might argue that the actor had the ultimately responsibility for safe handling of the firearm.
In this case, however, Alec Baldwin occupies both seats. So he can point his finger in this manner if he wishes, but ultimately he’ll be pointing it at himself.
And this implication could well apply not merely in the civil law context, within the scope of negligence, but also within the criminal law context, within the scope of recklessness and involuntary manslaughter.
So, whether this tragic event should qualify as a genuine innocent accident, or merely civil negligence, or perhaps criminal recklessness and involuntary manslaughter, will depend on how the facts fit into the legal framework I've just described.
I certainly don't yet know the actual facts in any concrete detail, and I expect few of us do.
But if we can't yet arrive at the right answer, because we lack the necessary facts, at least we now know how to ask the right questions—because we know the correct legal framework in which to place those facts once they are revealed to us, and arrive at a correct legal conclusion.
OK, folks, that's all I have for you on this topic.
Until next time:
You carry a gun so you're hard to kill.
Know the law so you're hard to convict.
Stay safe!
–Andrew
Attorney Andrew F. Branca
Very well worth your time.
this is a few days old, and there have been many threads.
hopefully someone will create an updated analysis in a few days as much new information has come in since this one was written.
(hopefully some arrests will happen also)
best case its negligence
the gun was pointed in the direction of people he supposedly didn’t intend to shoot, that’s negligence right there
at worst he is criminally liable if he was really fooling around and the gun went off
this man has been around prop guns for decades ever since the hunt for red october, he’s had numerous talks on numerous films by weapons armorers discussing proper handling and safety techniques for three plus decades of movies he’s been in
Yes, along with the armorer woman. Both would easily be prosecutable in New Mexico for reckless use of a firearm resulting in death.
It’s basically the same charge if you drive 90 miles an hour through town and kill a family.
It is called depraved mind murder.
Also the female is on the hook for Federal charges. Guns used as props do not arrive with all the other supplies for that film. They generally come from a few sources in California. They cannot ship a firearm to another legal entity or person in another state anymore than you can.
They ship to a local FFL who then does a legal 4473 transfer. After he filming is complete, they do it in reverse.
So this girl provides them to other Californians to go our recreational shooting with no background check as required under NM law.
If it was you and I, we would be looking at a decade of imprisonment Federal. No questions at all.
Great analysis. Thanks for posting.
If that’s not enough, there are a few people sitting in NM prisons as we speak. Careless and grabass gun handling at a party and the kill a friend.
Careless and reckless behavior resulting in death. Intent is not needed because the behavior itself is so dangerous.
I guess it comes down to whether it’s criminally negligent/reckless for an actor to not personally check out a firearm and what it’s loaded with before firing it at someone. It could be, but I guess I’ll be surprised if Baldwin is charged. But, going forward, after this incident, you could make a pretty good argument for criminal negligence/recklessness for the next actor who shoots someone after not properly inspecting his firearm.
I suspect that a lot of actors who shoot ‘guns’ in movies, never handled a real, hot one.
Don’t they hire special crews to handle and ensure this stuff on movie productions? What about their liability?
This is the first time I've read this rumor anywhere other than Twitter or Reddit, etc. I'd kind of dismissed it as dramatic gossip but finding it in this piece, even with his disclaimer that it may not be true...interesting at the least.
Industry Standard / and minimum
Safety demonstrations are done with all cast and crew involved in firearm stunts who are instructed that prop weapons should never be pointed at another actor or crew member. In scenes where a weapon is pointed and aimed at the camera ballistic shields are used.
.
Since yesterday morning I’ve been suggesting that at the very least he may be at risk of “at least” an involuntary manslaughter charge. Let me ask this question: If I’m horsing around with a friend in the garage and he hands me his unloaded gun and I point it at him and accidentally shoot him dead, what would I be charged with?
That is the test, for me. If someone hands you an “unloaded” gun, it is still your responsibility to ensure it is unloaded before pulling the trigger.
As for a criminal prosecution, I would be extremely surprised if any jury would convict in this case..not manslaughter and certainly not murder.
The words “prop gun” sinks a prosecution.... reasonable doubt... unless Columbo appears and has another question :-)
Now the civil actions will likely be epic in nature... and the production may not be able to collect from whatever underwriter they were insured by. If they self-insured they are really F#$%^d.
You’re right. The prop guy who prepared the gun and handed it to Baldwin would seem to have as much if not more potential liability than Xander Baldwin.
He did not shoot her by MISTAKE. He aimed the firearm at her INTENTIONALLY and pulled the trigger INTENTIONALLY. And without knowing it was loaded or pretending to not know that it was loaded. He committed murder. Let the judge, jury, and executioner deal with him. Good riddance.
Very informative peace. Thanks for the Post
I think people are not realizing that, at the heart of this case, it is not relevant whether the gun was used as a prop or simply “a gun”. If someone hands you a gun and you don’t bother to verify that it is unloaded, and you point it at another human being and shoot them dead, you will almost certainly spend some time in the slammer.
Remember the unauthorized car chase scene in “The French Connection”? If it had resulted in someone’s death, the fact that it happened while filming a movie only has an impact in that possibly more than just the stunt driver has criminal culpability for killing someone while reckless driving.
“The words “prop gun” sinks a prosecution.”
Not when it is a full on Colt Peacemaker, and was transferred via FFL to the production company, and used for recreational shooting after hours.
Even after you determine that the gun is unloaded you’re still not permitted by rules of safety to point it at anyone.
This business of calling it a prop gun is a little misdirection. If it’s a gun that is capable of shooting blanks it is a real gun. It is well-known, especially in the movie industry, that a close-range blanks can be lethal. Simply because it’s being used on a movie set doesn’t make it a prop gun. I think to be a prop gun it would have to be non-functional. Clearly this one doesn’t fit that definition.
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