Short Take: In Baldwin’s Defense

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.

Something must be done?

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?