State of New Mexico v. Alec Baldwin

Oh, the irony.

In 2018 actor Alec Baldwin joined a coalition of Hollywood celebrities in forming the “No Rifle Association Initiative,” which sought to reduce the National Rifle Association’s influence on American politics and society. In the wake of a horrific mass casualty shooting at the Parkland High School, the initiative sent an open letter to NRA’s then executive vice president, Wayne La Pierre, denouncing the NRA and accusing it of opposing “every single basic gun reform measure that might have saved lives” and vowing to “shine a bright light on what you and your organization do to America.”

Baldwin also verbally attacked NRA spokesperson Dana Loesch on Twitter.

“I see that @DLoesch wants to ‘take back the truth.'” Baldwin tweeted in 2018 regarding a trailer for her show on NRA TV. “And she doesn’t care how many dead bodies she has to step over in that pursuit. The Second Amendment is not a moral credit card that buys you all the guns you want. That law needs to be rethought.”

Coming from an actor working in an industry that has reaped untold wealth purveying pornographic violence involving the use of firearms, Baldwin’s self-righteous condemnation of Loesch, the NRA, and the Second Amendment was breathtakingly hypocritical.

And now, in a cruel twist of fate, Baldwin’s attack on the NRA turns out to be beyond ironic given that he is about to be criminally charged with involuntary manslaughter due in large part to his failure to follow the very simple and basic rules of gun safety as promoted by the NRA and other gun rights advocates.

So what happened?

On Oct. 21, 2021, Baldwin shot and killed cinematographer Halyna Hutchins during a rehearsal on the set of Rust, a Western movie that was being filmed in New Mexico. Yesterday, the Santa Fe County prosecutor’s office issued a statement announcing that Baldwin and Rust‘s armorer, Hannah Gutierrez-Reed, will be charged with involuntary manslaughter.

In response, Baldwin’s attorney said, “This decision distorts Halyna Hutchins’ tragic death and represents a terrible miscarriage of justice. Mr. Baldwin had no reason to believe there was a live bullet in the gun – or anywhere on the movie set. He relied on the professionals with whom he worked, who assured him the gun did not have live rounds. We will fight these charges, and we will win.”

But in reply, Mary Carmack-Altwies, the lead prosecutor, told CNN that a loaded gun was “handed off to Alec Baldwin, he didn’t check it, he didn’t do what he was supposed to do to make sure he was safe or make sure anyone else around him was safe. He pointed the gun at Halyna Hutchins, and he pulled the trigger.”

While Hutchins’ death may have been an accident, the prosecutor said Baldwin “doesn’t get a free pass” because he’s a movie star.

So what are Baldwin’s prospects at trial? Given the evidence — a great deal of which comes from Baldwin’s own mouth — and the law of New Mexico, he is at grave risk of being convicted. If that happens, he faces a maximum sentence of 18 months imprisonment on the manslaughter charge with a possible five-year enhancement for having used a gun in the commission of a crime.

So let’s look at the evidence.

Shortly after killing Hutchins, Baldwin was interviewed by George Stephanopoulos of ABC News. (You can view that interview in its entirety by clicking on this link.)

While Baldwin punctuated his answers with tears and expressions of anguish and sympathy for Hutchins’ family, from a legal standpoint, the interview was nothing short of disastrous. As explained below, Baldwin illogically and unconvincingly denied responsibility for the killing and lamely attempted to shift blame for Hutchins’ death to others, including, stupefyingly enough, the victim herself. In the process, he effectively and unwittingly confessed to committing involuntary manslaughter.

The killing took place as Baldwin and Hutchins were doing a “marking rehearsal” in a faux church structure where a gunfight scene was to be filmed. According to Baldwin, assistant director Dave Halls called out “cold gun” (meaning that it held no live ammunition) as he handed a revolver to the actor. Baldwin said that he did not personally check to see if the gun was loaded since that was the responsibility of the production’s armorer, 24-year-old Hannah Gutierrez-Reed. But, as will be discussed below, Reed was not on the set when Halls handed the gun to Baldwin.

Baldwin said that, a week previously, Reed had given him a one-and-a-half-hour “safety demonstration” during which they had fired “the pistol,” an apparent reference to the revolver in question. Left unsaid was whether or not that training session involved the use of live ammunition.

Although Rust was only the second movie on which Reed had served as an armorer, Baldwin “assumed that she was up to the job because she was hired.” Also, she had done nothing during the safety demonstration that concerned him.

During the marking rehearsal in the church set, Hutchins directed Baldwin on how and where to hold the gun in front of the camera. Baldwin told Stephanopoulos that he was not pointing the pistol at the camera. Instead, he was pointing it at Hutchins who was beside the camera.

What happened next is summarized in the following quotations transcribed from the interview video.

Baldwin: And she’s getting me to position the gun. Everything is at her direction … I’m holding the  gun where she told me to hold it, which ended up being aimed right below her armpit is what I was told. I don’t know…

So then I said to her, “In this scene I’m going to cock the gun.” I said, “Do you want to see that?” And she said, “Yes.” So I take the gun and start to cock the gun. I’m not going to pull the trigger. I said, “Do you see this?” She said, “Just lower it down, tilt it down.” 

And I cock the gun. “Can you see that? Can you see that? Can you see that?”

And then I let go of the hammer of the gun and the gun goes off. I let go of the hammer of the gun, the gun goes off.

…

Stephanopoulos: It wasn’t in the script for the trigger to be pulled?

Baldwin: Well, the trigger wasn’t pulled. I didn’t pull the trigger.

Stephanopoulos: So you never pulled the trigger?

Baldwin: No, no, no, no, no. I would never point a gun at anyone and pull a trigger at them, never. Never. That was the training that I had. You don’t point a gun at me and pull the trigger.

Now let’s pause and examine step by step what Baldwin said.

First, he did not personally check the pistol to see if it was loaded.

Second, he admitted to pointing the gun at Hutchins because that’s where she directed him to aim it.

Third, as he continued to point the gun at Hutchins, he pulled back the hammer.

Fourth, he says that even though he didn’t pull the trigger, when he let go of the hammer, the gun discharged.

When interviewed by police immediately after the shooting, Baldwin denied that he had pulled the trigger.

But Santa Fe County Sheriff Adam Mendoza, who investigated Hutchins’ death, said that Baldwin’s story made no sense.

“Guns don’t just go off,” Mendoza told Fox News. “So whatever needs to happen to manipulate the firearm [to make it fire], he did that and it was in his hands.”

The weapon in question is a replica of an 1873 Colt Single Action Army .45 caliber revolver manufactured in Italy by F.LLI Pietta. There are two ways that this gun can be fired.

The first way involves cocking the hammer and then pressing the trigger. Baldwin denied doing this.

The second way involves pressing and holding down the trigger while pulling back the hammer. With the trigger held down, the hammer will slam forward once it is no longer manually held in place. When that happens, the gun will discharge.

In either method, the amount of finger pressure and the distance that the trigger travels are minuscule.

F.LLI Pietta’s “Instruction and Safety Manual for 1873 Single Action Revolvers” describes in detail how to operate the weapon and specifically warns the operator of the extreme care that must be taken in manipulating and “decocking” the hammer while holding down the trigger.

On May 3, 2022, the FBI Laboratory issued a report of its testing of the gun. The lab determined that the revolver “could not be made to fire without a pull of the trigger while the working internal components were intact and functional.” However, according to the report, the FBI’s testing “fractured” those components, which has resulted in allowing the gun to fire without pulling the trigger. Nevertheless, in its original condition prior to being damaged by the FBI lab, it was necessary to pull the trigger in order for the gun to fire.

At trial, Baldwin’s claim that he didn’t pull the trigger can be contradicted by the FBI lab’s findings. As a matter of law, such a false exculpatory statement can be used as evidence of Baldwin’s consciousness of guilt. In short, the prosecution can use that demonstrably false attempt to evade responsibility to completely discredit Baldwin and eviscerate his defense.

Baldwin claimed that, over the course of his movie-making career, he had handled many firearms and had been instructed by armorers not to check to see if the gun was loaded. Early in his career, when he tried to do so, the armorers would take the gun from him and check to make sure that he hadn’t improperly altered its condition.

“We don’t want the actor to be the last line of defense,” said Baldwin. “The person responsible is the armorer, and the actor’s responsibility is to do what the prop armorer tells him to do.”

As a counterpoint to Baldwin’s claims about accepted movie industry firearms practices, the interview featured the following audio comment by actor George Clooney.

Clooney: Every single time I’m handed a gun on the set — every time — they hand me a gun, I look at it, I open it, I show it to the person I’m pointing it too, I show it to the crew. Every single take, you hand it back to the armorer when you’re done…. You do it again and part of it is because of what happened to Brandon, everyone does it. Everybody knows and maybe Alec did that, hopefully he did do that.

When asked to respond to Clooney’s criticism, Baldwin evasively replied, “There were a lot of people who felt it necessary to contribute some comment to the situation, which really didn’t help the situation at all.”

And then he sniffed, “If your protocol is you check the gun every time, well good for you.”

Just so. But the big problem with this dismissive rejoinder is that it came from someone who had just shot and killed his cinematographer, a pesky detail that tends to detract from the strength of Baldwin’s position.

When Stephanopoulos asked if he feels guilt for Hutchins’ death, Baldwin replied, “Someone is ​responsible for what happened, and I can’t say who that is, but I know it’s not me”

This from the man who literally held the smoking gun and who, with just the slightest exercise of due caution, could unquestionably have prevented Hutchins’ death by either personally clearing the weapon of live ammunition, pointing it in a safe direction, not cocking the hammer, or not pulling the trigger. If he had taken any one of these simple steps, Hutchins would not have been killed.

Now let’s look at the applicable law.

New Mexico’s statutory law defines manslaughter as “the unlawful killing of a human being without malice.”

“Without malice” means that the actor had no intention to kill.

Involuntary manslaughter is defined as “manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.”

A related New Mexico statute makes it a “petty misdemeanor” to negligently use a deadly weapon. It prohibits “endangering the safety of another by handling or using a firearm in a negligent manner.” No actual physical injury need result in order to violate this statute. It is sufficient if the negligent handling or use of the firearm merely endangered another.

The New Mexico courts have defined “negligent” as used in this statute as “omitting to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do.”

Applying this body of law to Baldwin’s version of events and the known evidence, there is ample basis for a jury to convict. Even though Baldwin intended no harm, he endangered Hutchins’ safety by negligently failing to personally make sure that the revolver was not loaded with live ammunition, pointing it at her, cocking the hammer, and pulling the trigger. By committing that “petty misdemeanor,” Baldwin committed the predicate “unlawful act not amounting to a felony” that establishes his liability under the involuntary manslaughter statute.

Alternatively, he will be charged under another section of the involuntary manslaughter statute based on his handling and use of the firearm without exercising “due caution and circumspection.”

With the exception of the FBI’s forensic examination of the gun and the proof gathered by the police, much of the evidence necessary to prove each and every element of involuntary manslaughter comes straight from Baldwin’s mouth.

As for Baldwin’s attempt to blame Hannah Gutierrez-Reed, the armorer, for the gun being loaded, she is, in fact, being charged with involuntary manslaughter for her negligent and unsafe storage and maintenance of firearms and ammunition on the Rust set. But her negligence doesn’t get Baldwin off the legal hook. In the 1955 case of State v. Gilliam, the New Mexico Supreme Court considered the appeal of a jury verdict in which the defendant had been found guilty of involuntary manslaughter. The evidence established that the defendant had engaged in the unsafe handling of a gun that discharged and killed the victim. The court held, in relevant part, the following:

It could have made no difference to the trial of a charge of involuntary manslaughter as to who loaded the gun…. All that is necessary to establish for involuntary manslaughter by use of a loaded firearm is that a defendant had in his hands a gun which at sometime had been loaded and that he handled it…without due caution and circumspection and that death resulted.

Although Gilliam was decided in 1955, it has yet to be overturned such that it makes no difference who loaded the gun. Even though Gutierrez-Reed, the armorer, is being charged separately with involuntary manslaughter, Baldwin nevertheless had a nondelegable duty to personally make sure that the gun wasn’t loaded.

Indeed, in her CNN interview, prosecutor Carmack-Altwies said that Baldwin, as the producer of Rust, ran a “fast and loose” set on which safety issues abounded.

There was such a lack of safety and safety standards on that set. There were live rounds on set, they were mixed in with dummy rounds. Nobody was checking those or at least they weren’t checking them consistently. They somehow got loaded into a gun, handed off to Alec Baldwin, he didn’t check it, he didn’t do what he was supposed to do to make sure he was safe or make sure anyone else was safe.

Finally, although the prosecution’s case is strong, a word of warning is in order. The prosecution must prove each and every element of the charges beyond a reasonable doubt and to the satisfaction of the jury. If I learned anything over 50 years of trying cases, it is this: you can never predict what a jury will do.

Regardless of the evidence and the law, it remains to be seen how Baldwin’s trial will proceed and whether or not the jury will buy his act.

Or, to paraphrase Yogi Berra, in a jury trial, it ain’t over until it’s over.

George Parry is a former federal and state prosecutor. He is a Life Member of the National Rifle Association and blogs at knowledgeisgood.net. He may be reached by email at kignet@outlook.com.

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