”As the actor, Alec Baldwin has little liability…. Baldwin the producer may bear more responsibility,“ one attorney tells TheWrap
Alec Baldwin was in tears Thursday after firing a prop gun that killed cinematographer Halyna Hutchins and injured director Joel Souza on the New Mexico set of the indie Western “Rust.”
But could the actor, who was also a producer on the film, face criminal charges for the death? Legal experts say the star faces some risks — perhaps more as a producer than as the performer who discharged the fatal shot.
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In the worst case, legal experts tell TheWrap that Baldwin could face an involuntary manslaughter charge if he is found to be reckless in his handling of the weapon — like if he fired the gun even after being warned against doing so. Under the New Mexico law, involuntary manslaughter does not require “specific intent” of wanting a person’s death. (Involuntary manslaughter is a fourth-degree felony in New Mexico, with a penalty of 18 months jail time and up to $5,000 in fines.)
“The prosecution would have to show that Mr. Baldwin acted with at least a negligent state of mind when he discharged the prop gun,” criminal defense lawyer Robert J. DeGroot said. “There have been instances of accidents involving prop weapons on sets which have led to deaths or other injuries. Such tragic incidents are foreseeable and should lead crew and cast to follow safety protocols to ensure that any prop gun discharge does not lead to harm.”
But experts said on-set shootings with prop guns have generally been deemed accidents that do not lead to criminal charges — as was the case with the 1993 killing of Brandon Lee on the set of “The Crow.” “Rarely do people on set get convicted. Everyone agrees it was an accident,” Richard Kaplan, criminal defense attorney of Kaplan Marino, said.
Trial lawyer Neama Rahmani said a murder charge is unlikely, because it would require showing intent to kill. “A manslaughter charge might be more likely, because it does not require intent to kill, but does require criminal negligence or gross negligence,” Rahmani said. “In this case, there are reports that the prop gun was loaded with live rounds. If that is true, that is grossly negligent, and whoever loaded the gun is going to be responsible.” (Authorities have not yet determined if live ammunition was used and the IATSE union official who suggested that a “live” round was used later walked back the statement.”
Authorities in New Mexico are still investigating the case, and on Friday, New Mexico’s First Judicial District Attorney Mary Carmack-Altwies said the investigation was still in its preliminary stages and it was too soon to say if criminal charges might be filed.
However, personal injury attorney Miguel Custodio noted that Baldwin may bear more legal responsibility as a producer on “Rust” than he does as the actor who discharged the fatal shot.
“Liability certainly points to Rust Movie Productions and the prop manager,” Custodio said. “As the actor, Alec Baldwin has little liability because you’re given something and you’re trusting the prop manager to have checked everything out. Baldwin the producer may bear more responsibility, depending on if he is just an investor or has a more active role in the making of the film, which I suspect he does.”
Experts also suggested that the film company and prop manager could face criminal charges. “It’s also clear that somebody failed her in the most basic way — to check whether a gun was safe — and may be criminally negligent,” Custodio said. “It’s likely they’ll go after Baldwin the actor, Baldwin the producer, the film company and the prop manager. And remember, director Joel Souza also was injured, and many others on set also are traumatized and affected by this.”
On Friday, the production team responded to reports that a half-dozen crew members walked off the set hours before the accident to protest safety and other working conditions on the production: “Though we were not made aware of any official complaints concerning weapon or prop safety on set, we will be conducting an internal review of our procedures while production is shut down. We will continue to cooperate with the Santa Fe authorities in their investigation.”
There is a precedent for prosecuting filmmakers for negligence. In 2015, “Midnight Rider” director Randall Miller and executive producer Jay Sedrish pleaded guilty to involuntary manslaughter after camera assistant Sarah Jones was killed on a railroad trestle on the first day of the shoot. Miller served one year in jail for the incident, and the production was cited by OSHA for “serious” and “willful” safety violations.
In past incidents of accidental killings on set, the individual firing the gun was generally not charged. In 1993, when actor Brandon Lee, Bruce Lee’s son, was filming “The Crow,” a prop gun was mishandled that led the cartridge with a projectile tip to become stuck. A blank round was fired that ended up killing the 28-year-old star, but the local prosecutor later decided against charging the production company with negligent homicide. The police investigation had found no evidence of criminal wrongdoing.
A criminal charge is unlikely unless something is found to be negligent or reckless — for example, if Baldwin was firing the weapon as a joke, and it was not during filming or rehearsing for a scene — versus accidental discharge, Kaplan said. (Baldwin on Friday expressed his “shock and sadness” over the accident, and said he was fully cooperating with the police investigation to address how this tragedy occurred.”)
There are a lot of open questions that need to be determined, including whether it was an accidental discharge and how two people came to be shot by a prop gun. (Souza was released from the hospital late Thursday and is expected to make a full recovery.) There will also be further examination into how the gun was handled before it was given to Baldwin, though authorities said Thursday that the actor discharged a prop gun that another producer told him was loaded with blanks and misfired.
“There’s a lot of scenarios I can run in my mind,” Kaplan said. “We don’t have an answer yet on why it was pointed at these two people. Was Alec reckless or were the prop people reckless? That’s what is being investigated and looked at.”
Regardless of any criminal charges, legal experts suspect that there will be civil litigation from the case. “The family will pursue the civil side, but the question is how much does the family pursue the criminal side,” Kaplan said, adding that many families do not want to go through the torment of long trials.
Attorney Jamie White also said that a civil suit seemed more likely than a criminal case. “If Baldwin or another person was negligent, a civil suit is almost a no-brainer at this point — a very high likelihood,” White said. “But the criminal side is going to be very fact-sensitive. Only if someone was recklessly negligent would there be criminal consequences. We see criminal negligence charges when people leave kids in hot cars, when they are recklessly driving. It’s too early to know that this will happen to Baldwin, but it’s not unheard of.”
Determining negligence in a civil suit will come down to whether Baldwin and any crew members acted unreasonably, attorney Evan W. Walker said. Both sides would attempt to find experts and argue aspects of safety checks on the gun or whether or not there was any breach to the standard of care. “Answering that question gets into legal analysis such as the custom, practice, and procedure of using guns on the set, safety checks, etc.,” Walker told TheWrap. “If the parties are unable to settle, a jury decides that question.”
“As the facts have thus far been presented, Baldwin will not be charged with an intentional act of violence,” White said. “However, it is not unheard of to be charged with significant negligence. There are a lot more facts that need to be developed, but studios take extensive cautions in light of Brandon Lee’s death in 1993.”