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:
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:
- 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.
- Never point the muzzle of a firearm at anything you are not willing to kill or destroy.
- Never press the trigger of a firearm unless you intend for it to fire a bullet from the barrel.
- 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:
- [Alec Baldwin] [pointed a loaded firearm at Ms. Hutchins and depressed the trigger, firing a bullet into her] ;
- [Alec Baldwin] should have known of the danger involved by [Alec Baldwin’s] actions;
- [Alec Baldwin] acted with a willful disregard for the safety of others;
- [Alec Baldwin’s] act caused the death of [Ms. Hutchins];
- 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 § 30-2-3. The 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.
Attorney Andrew F. Branca
Law of Self Defense LLC
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