Legal Analysis: Alec Baldwin Situation Beginning to Look a Lot Like Manslaughter

Welcome to today’s Law of Self Defense content! I am, of course, Attorney Andrew Branca, for Law of Self Defense LLC.

Today I’d like to share with some updated legal analysis of the Alec Baldwin on-set shooting of Halyna Hutchins, a 42-year-old mother and the director of cinematography for Baldwin’s in-production Western movie “Rust.” Ms. Hutchins, tragically, died as a result.  (Also injured by the shot was director Joel Souza, who survived.)

Spoiler:  The more we learn about the facts of this case, within the context of New Mexico criminal law, the more this shooting looks increasingly like a crime—specifically, felony involuntary manslaughter.  So, today let’s explore that possibility in further detail.

Last Friday we shared some analysis immediately after this tragic event just the day prior, and during which there remained considerable uncertainty and speculation regarding relevant facts surrounding what happened.  Given the “fog of war” circumstances on Friday, rather than advance towards a “right answer” as to the likely legal consequences of the shooting, we instead framed our analysis in terms of at least asking the “right questions.” You can find that here:

Alec Baldwin Shoots Woman Dead: Innocent Accident, or Involuntary Manslaughter?

Accordingly, we explored last Friday whether this tragic shooting might best be characterized as an accident, in the technical legal sense, or mere negligence giving rise to only civil liability, or perhaps recklessness giving rise to criminal culpability—specifically, involuntary manslaughter.

Since last Friday, however, it appears that certain facts have been established that have moved us hard towards the right side of that continuum and towards a conclusion that this tragic event looks increasingly like felony involuntary manslaughter.

Relevant Facts Assumed to Be Established

The relevant facts we’re presuming to be established for purposes of this analysis include:

  • That it was Alec Baldwin who was manipulating the gun that fired the projectile that killed Ms. Hutchins.
  • That the gun discharged because the trigger was depressed by Baldwin (and not because of some defect in the weapon).
  • That the muzzle of the weapon was directed towards Ms. Hutchins by Baldwin when it was fired (e.g., she was not killed by an unpredictable ricochet).
  • That the gun contained a live round, the bullet of which struck and killed Ms. Hutchins.
  • That Baldwin had the opportunity to inspect the weapon for live ammo before he directed it at Ms. Hutchins and pressed the trigger, killing her.
  • And, of course, that there was no justification for the shooting of Ms. Hutchins (e.g., this was not an act of lawful self-defense—which it clearly was not).

Separately, we are assuming for purposes of today’s analysis that Baldwin did not intend to injure Ms. Hutchins. If such intent to harm were established, we’d obviously be looking at a much more serious criminal charge than mere involuntary manslaughter.

Assuming, as we are, these facts to be established, it would certainly appear that they are more than sufficient to justify a criminal charge of involuntary manslaughter under New Mexico law and to support a conviction beyond a reasonable doubt on that charge.

New Mexico Involuntary Manslaughter Statute: § 30-2-3. Manslaughter.

The relevant New Mexico statute on involuntary manslaughter is § 30-2-3.  Manslaughter, which addresses both voluntary and involuntary manslaughter.  Our focus here, of course, is on involuntary manslaughter.

In the context of involuntary manslaughter, § 30-2-3 reads in relevant part:

Manslaughter is the unlawful killing of a human being without malice. … B. Involuntary manslaughter consists of manslaughter committed in the … commission of a lawful act that might produce death … without due caution and circumspection.

Ms. Hutchins is obviously killed.  We have stipulated that the killing of Ms. Hutchins was not justified (e.g., it was “unlawful”) and without malice (without intent to cause harm), so that meets the conditions of the first sentence of the manslaughter statute, and satisfies the definition of manslaughter under New Mexico law.

The possibility of voluntary manslaughter appears to be off the table here, given the lack of evidence of a “sudden quarrel” or “heat of passion”  required for that crime by § 30-2-3.  So that leaves us to consider the possibility of involuntary manslaughter.

The key, then, is to determine whether Baldwin’s pointing of the gun at Ms. Hutchins and pressing the trigger without first ensuring that the gun did not contain live ammo, was the commission of a lawful act which might produce death and that was done “without due caution and circumspection.”

Inherently Dangerous Instruments: Yep, Including Guns

That means we have to understand what “due caution and circumspection” means—and particularly in the context of an inherently dangerous instrument, such as a firearm.

It is common knowledge that firearms are dangerous instruments, so the law presumes that we all possess such knowledge. In the case of Baldwin, he actually sits on the board of a gun-control organization whose existence is premised on the fact that guns are dangerous, so he can certainly be presumed to possess this knowledge.

Items are inherently dangerous when they can readily cause death or serious bodily injury to people if used carelessly.  Guns clearly qualify, as already noted. Also in this category of inherently dangerous instruments would be explosives, heavy equipment, and dangerous drugs or chemicals.  Use of these items takes particular and specialized care if death or serious bodily injury is to be avoided.

It happens that inherently dangerous instruments are often exceptionally useful.  Guns, for example, are exceptionally useful, compared to the available alternatives, for purposes of defense and hunting.  Explosives are exceptionally useful for mining and road construction and demolition.  Dangerous drugs are exceptionally useful for human health and dangerous chemicals for various industries.

Balancing Inherent Danger with Social Utility: Strict Liability

So, society wants to realize the value of these various inherently dangerous instruments—but also wants to balance that value against the considerable risk of harm these inherently dangerous instruments might cause.

That balance is achieved by imposing the following rule—anyone making use of an inherently dangerous instrument is strictly liable for any unnecessary harm that they cause, no excuses, period.  The burden is placed on the person using the inherently dangerous instrument to ensure that they take whatever steps are required in order to not cause unnecessary harm—and if they do cause unnecessary harm, they bear absolute responsibility for that harm, no excuses.

What this all boils down to is that for any category of inherently dangerous instrument there will have been rules developed for the safe use of that instrument—follow the rules, and the value of the instrument can be realized without much risk of serious harm.  Fail to follow the rules, and serious harm becomes quite likely—and, again, the user then bears absolute responsibility for having caused that harm, no excuses.  (If safe use of an inherently dangerous instrument would not be possible even if safety rules were followed, that instrument would simply be prohibited from general use.)

Four Rules of Gun Safety, or “Due caution and circumspection”

What this means in the context of firearms, a particular class of inherently dangerous instruments with a considerable potential for causing unnecessary death and serious harm to others, is that there exists a series of safety rules for their responsible operation.  These rules are well established and widely recognized—and there are only four of them.

Phrased in the context most relevant to the facts of this case, the four rules for safe gun handling are:

  1. All guns are presumed to be loaded until the gun handler personally verifies otherwise—and that verification becomes invalid the moment the gun leaves the handler’s control.
  2. Never point the muzzle of a firearm at anything you are not willing to kill or destroy.
  3. Never press the trigger of a firearm unless you intend for it to fire a bullet from the barrel.
  4. Know your target, and what is beyond your target.

That last safety rule is intended to recognize the dangers presented by bullets that can penetrate objects and proceed onward to strike unintended people and things, as well as to help prevent hunters from shooting each other because of mistaken identification as game, so that one isn’t particularly relevant to our analysis here.

The first three safety rules, however, are intensely relevant to the facts of this case.  As the safety rules for safe gun handling, they define what is meant by the statutory element of “due caution and circumspection” in the context of handling firearms.

The Beautiful Redundancy of Gun Safety Rules

One interesting facet of the gun safety rules is that they are redundant, in the technical sense of meaning that violating any single one of them will not necessarily have a bad outcome. Indeed, a bad outcome in the sense of death or serious bodily injury can really only happen not if one of those three safety rules are violated, or even two of them, but instead requires that the gun handler manage to violate all three of those gun handling safety rules.

Merely mistakenly believe a gun does not contain live ammo (e.g., in fact it is loaded), but neither point it at anyone nor press the trigger, and no harm results.

Merely point the muzzle at someone, but first ensure the gun does not contain live ammo and do not depress the trigger, and no harm results.

Merely press the trigger, but first ensure the gun does not contain live ammo and don’t point the muzzle at anyone, and no harm results.

Break all three of the safety rules, however—mistakenly believe your gun containing live ammo is unloaded, point the muzzle at another person, and press the trigger—and you have a very bad outcome, indeed.

That’s precisely why the safety rules exist—so when handling an inherently dangerous instrument in the form of a gun, bad outcomes—death and serious bodily injury—can be avoided.

So how does one handle a firearm “with due caution and circumspection”?  By adhering to those safety rules when handling the firearm.

When is a person handling a firearm failing to do so “with due caution and circumspection”? When they are handling that firearm in a manner that violates one or more of those safety rules.

Based on the apparent facts of this case, it appears incontestable that Alec Baldwin violated all three of those primary gun handling safety rules when he engaged in the conduct that killed Ms. Hutchins.

First, he pointed the muzzle in her direction—presumably directly at her.

Second, he pressed the trigger in the manner designed to fire the weapon.

Third, he failed to first ensure that the weapon did not contain a live round.

The result:  the unintended discharge of the bullet into Ms. Hutchins, killing her.

That, in a nutshell, certainly appears to be the “commission of a lawful act which might produce death … without due caution and circumspection.”

And that, as we’ve already seen, is the statutory definition of involuntary manslaughter under § 30-2-3.

NM Jury Instruction 14-231 Involuntary Manslaughter

Another angle from which we can inspect this question of whether Baldwin’s conduct qualifies as involuntary manslaughter under New Mexico law is to take a look at the relevant New Mexico jury instruction: 14-231 Involuntary Manslaughter.

While jury instructions are not, technically speaking, authoritative sources of law themselves (those are statutes and court decisions, or case law), jury instructions are a useful amalgamation of the statutory language and how the courts want that language applied to real people in real cases.  Because they are instructions intended for a jury of laypeople, and not legal experts, they also tend to be written in plain English.

Indeed, they are often written in a “fill-in-the-blanks” kind of format to make them easy to use consistently from trial to trial, and that’s precisely how New Mexico structures its uniform jury instructions.

Here’s how jury instruction 14-231 on involuntary manslaughter would be read to the jury if the blanks were filled in with relevant facts from Baldwin’s shooting of Ms. Hutchins [that content placed within brackets]:

For you to find the defendant guilty of involuntary manslaughter, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

  1. [Alec Baldwin] [pointed a loaded firearm at Ms. Hutchins and depressed the trigger, firing a bullet into her] ;
  2. [Alec Baldwin] should have known of the danger involved by [Alec Baldwin’s] actions;
  3. [Alec Baldwin] acted with a willful disregard for the safety of others;
  4. [Alec Baldwin’s] act caused the death of [Ms. Hutchins];
  5. This happened in New Mexico on or about the 21st day of October, 2021.

The “know of the danger” and “willful disregard” portions of the jury instruction correspond to the “due caution and circumspection” language of § 30-2-3The matter of “willful” merely refers to the fact that whether to first inspect the gun to ensure it did not contain a live round was within Baldwin’s control—there was no outside force compelling him to not safety check the firearm before he pointed it at Ms. Hutchins and fired it.

So, again, it seems incontestable, based on the evidence as it appears to be, that Baldwin’s conduct meets the legal conditions for the crime of felony involuntary manslaughter.

“Hey, Andrew, Any Case Law On This?”

But wait, we’re not done yet. Having looked at the relevant New Mexico statute and jury instruction on involuntary manslaughter, we ought also to consider whether there’s any New Mexico case law (appellate court decisions) that would seem to apply to this question of whether handling a loaded gun in such an unsafe manner that you unintentionally kill someone meets the legal standard for the crime of felony involuntary manslaughter.

And, as it happens, there is indeed New Mexico case law precisely on this point.

That case law is a decision out of the New Mexico Supreme Court itself, State v. Gilliam, 288 P.2d 675 (NM Sup. Ct. 1955).  For any of you who may be concerned that Gilliam, a decision handed down in 1955, is “out of date,” be not afraid—case law is perfectly valid law until there is a Constitutional, statutory, or later court decision that modifies or reverses the applied legal standard. Valid case law does not simply “expire”—and I used my office’s professional legal database resource, Lexis, to ensure that Gilliam remains good law in New Mexico.

The decision was an appeal of a criminal conviction at a jury trial, in which the defendant had been found guilty of involuntary manslaughter by the act of unsafely handling a gun with the result that it discharged and killed the victim.

The NM Supreme Court ruled in that decision, in relevant part that:

It could have made no difference to the trial of a charge of involuntary manslaughter as to who loaded the gun … . 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 … without due caution and circumspection and that death resulted.

So, it doesn’t matter who loaded the gun—meaning, all this talk about whether the live round in the gun came from this source or that source or some other source is largely irrelevant for purposes of determining whether Baldwin’s shooting of Ms. Hutchins was involuntary manslaughter under New Mexico law.

All that matters in the context of involuntary manslaughter through unsafe handling of a firearm is that “the defendant had in his hands a gun which at some time had been loaded and that he handled it without due caution and circumspection and that death resulted.”

Clearly Baldwin “had in his hands a gun, which at some time had been loaded.” And as we’ve already demonstrated, by so thoroughly violating the well-established, and mandatory, rules of gun safety he also “handled it without due caution and circumspection.”  And, finally, we all know for certain the tragic outcome of this conduct that Ms. Hitchens’ “death resulted.”

Again, it’s hard to see how Baldwin’s fatal shooting of Ms. Hitchens, based on the facts as we believe them to have been established, could fail to qualify as involuntary manslaughter under New Mexico law.

What About Things Other People May Have Done Wrong?

I see a lot of hand-wringing attempting to assign blame for this tragedy to, it seems, everybody other than Baldwin. Frankly, the intensity of these efforts suggests to me that they are part of an orchestrated crisis management initiative put into play on Baldwin’s behalf—and that’s a smart move by Baldwin, if in fact that’s what he’s done. It’s why such crisis management firms exist.

It is, indeed, possible that other people also bear some responsibility, perhaps even criminal responsibility, for this tragedy.  Perhaps safety rules were broken, professional duties were failed, or adequate resources to ensure safety were not provided.

None of that, however, at all diminishes the responsibility, under law, for Baldwin to handle that inherently dangerous instrument, the gun, with due caution and circumspection—and that he failed to do when he pointed the gun at Ms. Hitchens and pressed the trigger, without first personally ensuring that the weapon did not contain a live round.

Whatever mistakes others might have made previously, had Baldwin broken even one less of the fundamental gun safety rules—had he not pointed the gun at Ms. Hitches, or had he not pressed the trigger, or had he assumed the gun contained live ammo until he personally determined otherwise—Ms. Hitchens would not have died from that bullet on that day.  Her fate ultimately rested entirely in the hands of Baldwin. And, it appears, he failed her and failed the law of New Mexico.

But He’s an Actor!

Another bit of handwringing I’m seeing a lot of is the notion that the rules should be different for Baldwin because he’s an actor, and actors often point guns at each other in various roles, it’s what they do.  They’re … different.

First, the reality that actors do often point guns at each other in various roles, and that they do it almost invariably without unintentionally shooting someone, is a credit generally to Hollywood’s safety practices, and only highlights to an even greater degree why adhering to “due caution and circumspection” is so vital when handling firearms.

When the safety rules are followed, no harm results. When Baldwin willfully violates the safety rules, Ms. Hitchens dies.

The death of Ms. Hitchens is not a “Hollywood problem,” Hollywood has a pretty darned good safety record in gun handling, it’s an “Alec Baldwin problem.

From more of a legal perspective, however, there’s nothing about being an actor that entitles someone to create an unjustified risk of killing someone, disregarding that risk, and then killing that person.  There’s no involuntary manslaughter “freebie” for actors.  If they kill someone recklessly, they are as guilty of involuntary manslaughter as is the fellow down the street who drunkenly runs over the nun in the crosswalk.  There’s no special “actor” court.

So, WILL Baldwin Be Charged with Involuntary Manslaughter?

Having said that there’s no special “actor” court, any charging decision is ultimately at the sole discretion of the local prosecutor.  And while such charging decisions should always be—but sometimes aren’t—based on adequate legal merit to believe guilt can be proven beyond a reasonable doubt, in high-profile cases such as this one charging decisions often become political in nature as well.

Should the local prosecutor choose to not charge Baldwin, then he’ll likely never face a trial on the felony charge of involuntary manslaughter.  That would be a lucky break, indeed, for Alec Baldwin.

If, on the other hand, the prosecutor decides to charge Baldwin with involuntary manslaughter, on the evidence as we believe it to have been established, it looks like a walk-away conviction to me, at least on the actual legal merits—juries are, as always, dangerous and unpredictable creatures.

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!


Attorney Andrew F. Branca
Law of Self Defense LLC

Law of Self Defense Platinum Protection Program

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27 thoughts on “Legal Analysis: Alec Baldwin Situation Beginning to Look a Lot Like Manslaughter”

  1. so apparently the deceased woman was manning a camera filming a scene and that required baldwin to point the weapon at the camera and shoot? That seems reckless in itself. One would think a remote controlled camera would be used for such a dangerous filming scene. I’ve used remote control on cameras to take photos of wildlife in the wilderness. It’s not that difficult if a novice like me can do it. You couldn’t give me all the gold in china to stand behind a camera and film that scene.

    1. I don’t think she was filiming a scene at the time of the shooting, but that doesn’t change anything. Just as negligent to point a loaded weapon at her when she was not filming as when she was filming.

          1. He was rehearsing drawing and pointing at the camera at the same time she was setting up the camera, or so I’ve heard. Something he shouldn’t have been doing with a real firearm. loaded or empty, and I’ve heard that all my life. I believe they were not following industry standards for safety on this film.

            The guy in charge of firearms safety on this film, the Assistant Director, was the Assistant Director on the film where Bruce Lee’s son was shot dead about 20 years ago. He had been fired from a film two years ago as a result of one of the actors being shot with a negligent discharge. There had been 3 or maybe 4 negligent discharges on the Rust set in the 7 days preceeding the homicide.

  2. I can’t help but wonder who the gun was intended to be pointed at in the scene about to be shot. This does not change the situation for Alec Baldwin. But it might point to an attempted murder of someone else by whoever loaded the live ammo. How Columbo of me.
    The other thought is about how many actors have no idea about gun safety or even know how to check a gun to see if it has a live round instead of a blank.

  3. Not that it would make any difference on your analysis, but I would say that Baldwin was committing an unlawful act under NM Stat § 30-7-4 A. (3) (2020)
    A. Negligent use of a deadly weapon consists of:

    (1) discharging a firearm into any building or vehicle or so as to knowingly endanger a person or his property;

    (2) carrying a firearm while under the influence of an intoxicant or narcotic;

    (3) endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner;

    1. Attorney Andrew Branca

      Good catch, and I may follow up on that. I’ve had NM attorneys suggest that the criminal charge here could be much more substantial than mere involuntary manslaughter, but I need to do some more of my own legal research before I’m comfortable running with that argument.

      1. A strict reading of first degree capital murder would make this first degree murder, but I believe there are court decisons that would make it very hard to convict on first degree murder. Seems like the courts have bent over backwards to keep from convicting anyone of first degree murder based on an intent to do the act rather than an intent to achieve the result of the act.

  4. So Andrew, what would be the proximate casue of death here. Could anyone else responsible be charged with manslaughter, murder, or even battery on the wounded man? Nobody has even mentioned him.

  5. If this is the industry standard, then I think there is probably probable casue to believe this homicide falls in the catagory of a felony homicide, rather than a justified homicide or an excusable homicide.

    Patrick Storey, a Richmond, Va.-based prop master who most recently worked on the latest “Scream” film, said that while rubber guns are used in stunt scenes in film and TV so stunt performers can fall on the gun safely, “blank fire guns” or replicas most often are used for close-ups.

    “It’s a total tragedy that could completely have been avoided,” Storey said. “Blank fire guns require a ton of due diligence. There are systems in place to do this. It’s partially inspecting the rounds and having an armorer who’s an absolute expert in these things.”

    It’s unclear if an armorer was working on the set of “Rust.”

    “It depends on the producer and budget, but generally speaking, if there’s any more than a couple of rounds being fired, it’s best to have an armorer just so that there’s one person dealing with that and nothing else,” said Martin Lasowitz, the prop master on filmed-in-Pittsburgh “Archive 81” and “Rustin.” He noted there is no gunfire in “Rustin,” which is currently filming in Western Pennsylvania, and the guns carried in holsters by actors playing police officers are fake guns made of cast resin.

    Dummy rounds might be used in a revolver to simulate the presence of a bullet, but if the trigger is pulled, a dummy round does not deliver sound or kickback.

    To simulate the sound, flash and movement of firing, blanks of varying strength of gun powder are used.

    “You never point the barrel at a person,” said Lasowitz, who was the prop master on weapons-heavy “I Am Legend” and “Leon: The Professional.” “You point it in such a way that it looks like you’re aiming at the person, but you never aim directly at the person.”

    Blanks can be deadly when fired at close range. Actor Jon-Erik Hexum died in October 1984 by an accidental self-inflicted blank gunshot to the head on the set of the TV show “Cover Up.” He was goofing off between takes and put the gun to his head and pulled the trigger, presumably not realizing the danger.

    Storey said he’s switched to Airsoft CO2 guns when possible. With CO2 guns, Storey said there’s no possibility of anything but CO2 gas exiting the firearm, although that does require the flash and report to be added as a special effect in post-production.

    “It’s just an added measure of safety I can control,” he said.

    The “Scream” movie Storey worked on was filmed in Wilmington, Del., on the same soundstage where actor Brandon Lee died in 1993 when a cascading series of mistakes by the crew led to Lee being shot while filming “The Crow.”

    “We were firing lots of blank guns inside of the sets, and we were really painfully aware (of following safety protocols),” Storey said. “People on my job were there the day (Lee) was killed.”

    Storey said when filming scenes where blanks are fired, there is a whole series of steps he follows. He inspects the gun before it’s loaded, and inspections also are done by the armorer, the assistant director, the key grip and the medic. They shine a flashlight down the barrel of the unloaded gun to look for any blockages.

    “I usually get the actor (gun) range time, where they can fire weapons as often as they like, but we don’t want them to be too comfortable,” Storey said.

    The armorer has possession of the gun at all times, and the weapon should be handed to the actor only at the moment when the camera is about to roll and after having thoroughly discussed the camera shot.

    “You never point an unloaded weapon at anyone, even a rubber gun,” Storey said. “We treat everything as if it’s real and loaded.”

  6. Googling this topic, many lawyers and even constitutional professors have chimed in that he will most likely not be charged with the specific crime you sited in this article because they don’t believe his actions rise to it. How can so many lawyers come to this conclusion when it seems this is a very clear cut case? The only way I see him not being charged, is if the DA willfully disregards the law in favor of celebrity.

    1. They are leftwing and don’t consider a “prop gun” to be a firearm or a dangerous weapon, or they don’t think it is negligent to point a prop gun at a person and pull the trigger. I would imagine it is the second reason since most people on the left don’t think they are responsible for their own conduct, it is always somebody’s elses fault.

    2. The only way I see him not being charged, is if the DA willfully disregards the law in favor of celebrity.

      That would be one way. Another way would be if he told the investigating officers that he personally checked the firearm to see if it was loaded with dummy rounds like the scene called for and determined that it was, and that the gun went off unintentionally when was rehearsing drawing and cocking it and pointing it in a safe direction. I mean, dummy rounds used in film making are probably pretty realistic looking. I haven’t ever seen a closeup with orange bullets showing at the end of the cylinder or in the cartridge in the belt loops, and I haven’t ever seen orange primers or orange heads on the cartridges either. Quite possible he checked and overlooked a live round mixed in with the dummy rounds, or quite possible that a live rounds was accidently marked as a dummy round, and quite possible his thumb accidently sliped off the hammer when he was practicing his single action draw (thumbing back the hammer as you are drawing and before you are on target). Baldwin isn’t claiming self defense, so he doesn’t need a lawyer that specializes in self defense, he needs a criminal defense lawyer that specializes excuse defenses.

  7. Most of the mangled understanding of the law is being generated by lay persons (and that includes journalists) who chatter imaginary legal theories as some kind of ‘known’ consensus. However the MOST disturbing are those who are quoted as “experts” who add to the confusion by their own vagaries or errors.

    An example, from

    Arthur L. Aidala, a managing partner of the New York criminal-defense firm Aidala, Bertuna & Kamins, said he didn’t believe Baldwin would face charges if the actor was unaware that the prop gun had
    live ammunition in it.

    “Even though we absolutely know who possessed the weapon, who discharged the weapon, and who caused the death of a human being, it would fall under the excusable homicide statute,” Aidala said.

    That’s because New Mexico law has a stipulation called “excusable homicide,” which means that it’s not a crime to kill someone “by accident or misfortune, in doing any lawful act, by lawful means, with
    usual and ordinary caution and without any unlawful intent.”

    It would appear this NYC “criminal defense” attorney doesn’t understand the legal definition of an accident, or what ordinary caution with a dangerous weapon is.


        1. I am not sure it is fair to say these lawyers and scholars do not understand the law, although some make the mistake of applying the law of their own state instead of the law of New Mexico. Baldwin’s guilt hinges on a question of fact not a question of law. That question is whether he acted with due caution and circumspection. The difference between criminal and ordinary negligence is a matter of degree; the difference between the actions of an “ordinary reasonable person” and the defendant. The reason so many practicing criminal attorneys and legal scholars say he is not liable to prosecution is not because they misunderstand the law, it is because they see a different version of the facts. These attorneys and scholars are not firearms experts. Where I would expect a firearm handed to me by a clerk at a gun store to be loaded until I checked it myself, and even after checking it I would still not point it at someone unless I had an intent to shoot them, they would believe that a firearm handed to them by that “expert” clerk would be safe for them to handle without fear of it going bang.

          What we see in this blog is a narrative of Baldwins guilt, but Baldwin’s attorney will argue that he exercised due care by hiring the experts that instructed Baldwin in the “safe” handling of firearms. The jury will hear both narratives and decide if he acted recklessly. You should also remember that the New Mexico Supreme Court says that “in the absence of criminal negligence, the defendant cannot be found guilty of involuntary manslaughter” (STATE V. LUCERO, 2010-NMSC-011, 147 N.M. 747, 228 P.3d 1167). That means the prosecution must prove criminal negligence beyond a reasonable doubt, an extremely high hurdle.

          Even though I agree with Andrew that this is a clear case of criminal negligence, we are both knowledgeable about firearms so there is a good chance we would not be on the jury. In fact, the jury may be disproportionately comprised of people who think just like those criminal attorneys and legal scholars. They just might buy the defense narrative that he should have been able to rely on the experts; juries are fickle.

          1. Attorney Andrew Branca

            I doubt an interested prosecutor would have any difficulty documenting that due care and circumspection when handling guns, even on a movie set, did not justify Alec Baldwin pointing an actual firearm at a woman and pressing the trigger without ensuring the gun was not loaded. Standard movie industry practice is consistent with normal gun safety rules. If it were not, we’d have fatal shootings on movie sets all year long.

          2. Whether Alec Baldwin acted with criminal negligence or not will be determined by what he did, the safety standards of the film industry, and New Mexico criminal negligence law. There would have to be a “gross” deviation from the film industry standards for checking the firearm before use to be criminal negligence, and there is no telling how he was trained to check the gun before use. Might just have been a visual check of the front end of the cylinder to see if it is loaded with dummy rounds or blanks, with an additional check of the bore only if it is loaded with blanks. If police officers and private citizens can raise their training as evidence of justification, so can a liberal actor.

            Keep in mind, in this industry if the gun is loaded with what appears to be real live ammo (dummy rounds) the gun is considered safe, if it is loaded with blanks which do not have bullets in the end it is considered dangerous. It is never supposed to be loaded with real live ammo and that is the weapons expert’s job to see to that.

          3. Attorney Andrew Branca

            No. Most police office negligent discharge cases take place in Federal court, where there is a plethora of special rules created for what a reasonable police officer would do, because of the unique role police officers have in being privileged by society to be lawful aggressors in the use of force upon others.
            There is no such equivalent body of case law for “what a reasonable actor would do,” either in Federal nor New Mexico state law.
            There is no “actor” exception to New Mexico involuntary manslaughter law, there is no New Mexico case law that carves out relaxed rules for reckless homicide by actors, there is literally nothing under New Mexico law that would allow actors acting recklessly to be treated any differently than anyone else acting recklessly.
            If the role called for the actor to get actually intoxicated and operate a motor vehicle down an open-access public highway, and they ended up recklessly running over a nun, nobody would ever dream of justifying that death on the grounds that, well, he’s an actor, that’s what he does, he plays roles, it was up to other people to make sure there wasn’t an innocent victim on that open-access public highway.
            What we would all expect, if they wanted to have a drunk actor drive a car down a highway, is that they would take all necessary precautions to ensure there was nobody on the highway.
            With the actual gun incident, we would expect that they would take all necessary precautions to ensure there was no live ammo in that gun–and the ONLY person who could ensure that with utter certainty the moment the trigger was pressed with the muzzle on Ms. Hutchins was Alec Baldwin.

  8. It could have made no difference to the trial of a charge of involuntary manslaughter as to who loaded the gun … . 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 … without due caution and circumspection and that death resulted.

    Who loaded the gun and who other than Alec Baldwin failed to ensure that the gun wasn’t loaded isn’t an issue in determining whether or not Alec Baldwin committed the offense of involuntary manslaughter. But who loaded the gun and who other than Alec Baldwin failed to ensure that the gun wasn’t loaded is relevant as to whether or not those people are also guilty of involuntary manslaughter.

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