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.”)
UPDATE: It would appear that this tragic event, as new facts continue to be revealed, is a pretty textbook case of involuntary manslaughter under New Mexico law. Per the New Mexico Supreme Court:
“All that it is necessary to establish for involuntary manslaughter by the use of a loaded firearm is that a defendant had in his hands a gun which at some time had been loaded and that he handled it, whether drunk, drinking or sober, without due caution and circumspection and that death resulted.”
State v. Gilliam, 288 P.2d 675 (NM Sup. Ct. 1955)
The Tragic Event
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.
The Legal Defense of Accident
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.
And Now You Know the Right Question
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.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
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31 thoughts on “Alec Baldwin Shoots Woman Dead: Innocent Accident, or Involuntary Manslaughter?”
2 more questions: what if the gun was loaded with “prop” ammo with no bullet? What if Alec Baldwin thought it was loaded with “prop” ammo but it actually was real ammo?
I only see the one question, but: The question of whether the gun was loaded “prop” or loaded “real” is no different, conceptually, than if the gun was unloaded or loaded–whose responsibility was it to ensure that a gun capable of firing real rounds would not fire a real bullet into the victim when pointed at her and the trigger depressed?
Question 1. No such thing as “prop” ammo and the hole in the homicide victim indicates the firearm was laden with powder and shot.
Question 2. You mean what if Alex Baldwin recklessly assumed the deadly weapon wouldn’t fire a deadly bullet when he pointed it at the homicide victim and pulled the trigger? Well, he would probably be guilty of a reckless homicide.
Blackston described the common law of excusable homicide on the grounds of misadventure (accident) as: “1. HOMICIDE per infortunium, or misadventure, is where a man, doing a lawful act, without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a bystander; or, where a person, qualified to keep a gun, is shooting at a mark, and undesignedly kills a man:” So the quesstion is does the law of New Mexico allow a person to point a firearm at another and pull the trigger. I seriously doubt it. That is assault with a deadly weapon in most states. It is a public wrong or public offense, a criminal offense. Consent is not a defense to a public offense because individuals cannot consent to wrongs that are injurious to the public. Actors should not be pointing real firearms at other people in violation of the criminal law. Non-functioning replicas are “prop guns,” real guns are real and inherently dangerous.
If the film was a western, it could be possible that the firearm was a single action revolver. That means for him to fire the gun, he has to cock the hammer first, then pull the trigger. And repeat both steps to fire again. It would be interesting to find out the details and what actually happened.
One bullet, two shooting victims. It is called over penatration.
Without direct knowledge of filmmaking, my understanding has been that all prop’s are under the control of a prop master, who’s responsible for ensuring there is no live ammunition in a weapon. This seems to me it would shift the liability to the person who’s responsible for ensuring the safety and security of the weapon. Honestly, I can’t imagine when there would ever be live ammunition, or a weapon capable of firing live ammunition, used in filmmaking. We’ll see how this one plays out in the press long before the facts are released.
It doesn’t shif the responsibility from the person firing the gun, but it probably does make him equally culpable in the criminal homicide. Whoever is making the film is probably equally culpable for using real guns as props instead of using real prop guns as props.
I read an account from, allegedly, someone who was there. Who knows if it’s true. If it was true, Baldwin is in legal trouble. You cannot be flippant with a gun in your hand, I don’t care if it is a movie prop. I even treat the business end of a brad nailer like a firearm.
Are you referring to the report that the shooting was not during the filiming of a sceen—-That between sceens Baldwin threatened to shoot the director and then proceeded to shoot her?
I am. And I submitted my comment a little before Andrew mentioned that very scenario, I guess it has made the rounds.
What an awful tragedy. Even if Baldwin is not criminally responsible, no way in hell this should have happened.
I don’t don’t see any way he can’t be culpable. He pointed a loaded gun at another person, either negligently, recklessly, knowingly, or purposely, and intentionally pulled the trigge I have never see the defense of “I didn’t know the gun was loaded” allowed in a criminal case. Common law murder did not require an intent to kill the homicide victim or any particuliar malice towards the homicide victim at all, it only required a voluntary act without legal justification or excuse that was so inherently dangerous to others that it evidenced malice towards all mankind.
I found the analysis of each of the potential legal ramifications (charges) to be very informative. Thank you.
What seems like a few years ago, a police officer conducting a session with senior citizens was demonstrating
some police tactic when the officer shot and killed a woman senior citizen. I believe this was in Florida and unfortunately I
don’t know what the legal outcome was. Likely not good for the LEO.
From only what I’ve read in the AP news reports, the two victims were shot by a single blank cartridge. If true, it wouldn’t be the first time an actor was killed or injured by a blank in a prop gun. Jon-Erik Hexum, while filming in the TV series “Cover Up”, accidently killed himself with a blank in a prop gun. As mentioned early, once more facts are revealed, we’ll know better what Alec could be liable for … and whether or not the DA will choose to bring charges against him or not.
He put the gun loaded with a full power blank (sometimes blanks actually have more powder that live magnum rounds) to his head and fired the round. The concussion comming out the end of the barrel blew a hole in his skull and the piece of skull bone was driven through what little brains he had killing him.
Bruce Lee’s son was killed by pistol that had fired a squib round and the bullet was still stuck in the barrel (not removed with a ramrod). When a full power blank was then fired in the gun the pressure fired the bullet out the muzzle just like it had been crimped into the cartridge case and killed Lee.
So, “is gun, is dangerous.”
I’m not in the movie business but I would think actors, particularly ones without in-depth training, might not be permitted to open a weapon’s action once it was “set” by the prop master or armorer and certified safe for that scene. They get handed the gun, allowed to shoot the scene, then surrender it back.
The more times a gun is handled the more opportunities for mistakes to happen, so to allow actors, who, training or not, may not be the sharpest or thoughtful knives in the drawer and whose job requires them to be focused on a completely different skill set and task in the moment to be handling weapons which, by necessity, are going to be pointed at other human beings, might not be the lowest risk option.
I might want to run my set like that if proper training time isn’t available and even blank-firing guns are being used. I hand it to you, you use it as you were instructed by the Director/Prop Master/Fight Coordinator, then you immediately hand it off to only a designated crew member.
I think in most states it is a criminal offense to point a gun at someone whether it is loaded or empty. Guns used by play actors should be limited to play guns. Just because they are making a movie doesn’t give them a right to violate the law. Assault is a public wrong and it is always a publich wrong. Consent of an individual is no defense to a public wrong. It can be a limited defense to a civil action for a private wrong, but in most cases when it involves a physical injury it is no defense in a civil action either. The movie industrie should be using props (play guns) that are not capable of fireing projectiles.
“I think in most states it is a criminal offense to point a gun at someone whether it is loaded or empty.” The crime there is usually assault, which requires putting the other person in fear of imminent unlawful harm. A director of photography on set would presumably not have such fear of an actor pointing a gun in their direction, as the actor had been instructed to do for the scene.
Of course you are right about common law assault requiring that the assault victim be aware of the threat, but a lot of people misuse the term assault to talk about the offense of brandishing, attempted battery, battery, and even aggrivated battery. I was think about the brandishing laws like Missouri’s that only requires the unlawful display to be in the presence of others and the Georgia’s law that only requires that the firearm held in the traditional firing position and pointed at another. Missouri’s is a felony offense that would make this offense a second degree felony murder and Georgia’s is only a misdemeanor offense, but it should prevent the homicide from being classified as excusable because of the unlawful conduct of pointing the firearm. I think New Mexico has a statute that makes the pointing of a firarm, loaded or empty, a misdemeanor offense and that should prevent this homicide from being classified as an accident. I’ve heard that right now law enforcement is trying to decide whether or not they can claim the firearm was not a deadly weapon so they can get away with ruling the homicide an accident.
Given the standards of practice of the film making industry (reasonableness), it is hard to imagine that pointing a prop firearm at another person is a “public wrong” giving rise to criminal liability. We shall see. Somebody is on the hook civilly, but I doubt that there is any criminal liability. Just my opinion, of course.
Reckless conduct doesn’t become non-reckless simply because it may be common.
The same rules of gun safety apply to firearms used in the film making industry as to any other firearms and that is the “standards of practice” in the film making industry according to professionals in the film making industry.
This homicide, based on the information in the media reports, was obviously some degree of criminal homicide, but since Baldwin is a liberal anti-gun leftist he probably will not be charged.
Thanks, Andrew. This is one of your best blogs for the gun community.
Prop guns and blanks cartridges need something in the casing to keep the propellent from draining out, usually wadding, which is lethal at short distance. Balwin’s costume, stained with blood, was taken as evidence which seems to mean the gun was shot at close range to the victims. How it struck the deceased in the neck and the stagehand in the collarbone is hard to phantom. Guns in cowboy movies are usually large cartridge guns like the Colt 45. The shooting will be devastating for the ones involved, but will promote gun safety to the general public which is good. Laws will be passed to make movie producers secure their operations and should include inspections. CNBC quotes Los Angelos Times saying there were reported two previous prop gun misfires on the RUST set, one the previous week and one on Saturday. Also prior to the shooting, some six camera crew workers walked off the set to protest working conditions. You can never over emphasize safe gun handling education. I’ve been carrying every day for the last eight years or more and that little black thing still scares the hell out of me. I treat it like I’m handling a rattlesnake.
Of course, today’s theme of accident, negligence and recklessness carries over into all aspects of life were I try to be a sane, moral, prudent person. So Andrew, keep up the good work, and don’t let up on Alec Baldwin as the facts continue to reveal themselves.
More information on “prop guns” https://www.cnn.com/2021/10/22/entertainment/prop-gun-meaning-deaths/index.html
Very good and foundational information, necessary channel.
“In order for there to be criminal charges, one would really have to show that he intentionally killed this woman, which seems unlikely on the facts as we know them,” the Honorable Nancy Gertner, Senior Lecturer at Harvard Law School, told Newsweek.
Andrew: would this be on of those attorneys, judges, or law professors you were talking about the other day when you said most of them don’t know squat about use of force law? I see these type of ignorant comments from law professors quite often.
Nancy doesn’t know squat not just about use-of-force law, but about criminal law generally.
Every involuntary manslaughter conviction EVER (or, as they might say at Harvard, “EVAH”) lacked an intent to kill. That’s what the “involuntary” part of “involuntary manslaughter” means.
No, there is no element of intention to kill required for a criminal conviction–there is for murder, but not for other crimes. If recklessness is proven beyond a reasonable doubt, that’s sufficient to support a criminal conviction for involuntary manslaughter.
As a former Harvard student myself, way to degrade the brand, Nancy.
We have two degrees of involuntary manslaughter in Missouri. First degree is reckless and second degree is criminal negligence. And for those who don’t know, purposely or knowingly will suffice for reckless and reckless will suffice for criminal negligence.
“All that it is necessary to establish for involuntary manslaughter by the use of a loaded firearm is that a defendant had in his hands a gun which at some time had been loaded and that he handled it, whether drunk, drinking or sober, without due caution and circumspection and that death resulted.”
State v. Gilliam, 1955-NMSC-091, 60 N.M. 129, 288 P.2d 675 (S. Ct. 1955)
Here is what Blackstone had to say about a lawful act that results in a homicide being an excusable homicide on the grounds of accident, or involuntary manslaughter, or murder.
“So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection: as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only: but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning;79 and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind.80”
.You will notice that common law murder did not require an intent to kill, it only required an intent to do an act that was so dangerous to mankind in general that it evidenced a depraved heart. This depraved heart expressed malice aforethought. Blackston said: “This is the grand criterion, which now distinguishes murder from other killing: and this malice prepense, malitia praecogitata, is not so properly spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved, and malignant heart;116 un disposition a faire un male chose [a disposition to do wrong].117 and it may be either express, or implied in law.”
So, this homicide could fall into one of three different catagories: excusable misadventure, involuntary manslaughter, or malice murder, depending upon the evidence.
Looks like NM statute properly codifies common law murder.
A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:
(1) by any kind of willful, deliberate and premeditated killing;
(2) in the commission of or attempt to commit any felony; or
(3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.
Whoever commits murder in the first degree is guilty of a capital felony.
I don’t think this comes anywhere near the hurdle for First Degree depraved mind murder in New Mexico:
“Depraved mind murder, therefore, requires outrageously reckless conduct performed with a depraved kind of wantonness or total indifference for the value of human life.”
STATE V. REED, 2005-NMSC-031, 138 N.M. 365, 120 P.3d 447
This is clearly an involuntary manslaughter charge and should be an easy prosecution; if they do charge I would expect them to convict.