Interview hurt rather than helped Baldwin’s case on legal merits, but likely a political rather than legal ploy
Alec Baldwin recently gave a lengthy interview to George Stephanopoulos on the matter of Alec Baldwin’s fatal October 21 shooting of Halyna Hutchins, who was working as the cinematographer on the low-budget Western film “Rust,” on which Alec Baldwin was both the leading star and a producer. That interview aired the night of Thursday, December 2.
I’d written extensively on the legal implications around Alec Baldwin’s shooting of Halyna, particularly “Legal Analysis: Does Alec Baldwin Have Criminal Exposure After Shooting Woman Dead In Apparent Mistake?” the day after the shooting, and “Legal Analysis: Alec Baldwin Situation Beginning to Look a Lot Like Manslaughter” three days later. My conclusion, as the latter title suggests, is that Alec Baldwin’s conduct appears to have met all the conditions for felony involuntary manslaughter under New Mexico law.
For the last two days I’ve been receiving endless inquiries about whether Alec Baldwin’s interview in any way changes that legal conclusion. Having just had an opportunity to watch the interview a few minutes ago, this post is my response:
No, the interview did nothing to change my legal opinion. Indeed, not only am I more convinced today than when I wrote my previous analysis that Alec Baldwin’s conduct qualifies as felony involuntary manslaughter under New Mexico law, his interview “testimony” only strengthened that view.
In other words, Alec Baldwin violated the first rule of finding that you’ve dug yourself into a hole—stop digging.
The Relevant Facts
It’s common in human events of a chaotic nature for there to be a great number of facts and claims swirling around that may be fascinating and interesting to contemplate, and that make great fodder for water-cooler and internet conversation and commentary, but that are also largely irrelevant to legal analysis.
That’s certainly the case in the shooting death of Ms. Hutchins by Alec Baldwin.
The only legally relevant facts to an analysis of whether Alec Baldwin appears to have committed felony involuntary manslaughter is whether he pointed a loaded gun at Ms. Hutchins, and that gun discharged and killed her without any intervening event between pointing and death that could relieve Alec Baldwin of legal responsibility.
Given that these facts are uncontested, even by Baldwin himself, and really appear incontestable under any circumstances, there can be little doubt that Alec Baldwin’s conduct in causing Ms. Hutchin’s death qualifies as felony involuntary manslaughter under New Mexico law.
That said, it’s always worth taking a look at the actual law, so we can see how the facts and law combine to lead us to this inevitable conclusion.
Intentional v. Recklessness v. Negligence v. Accident
Before we dive into the specifics of New Mexico law on felony involuntary manslaughter it’s always useful to do a quick review of the various mental states that might apply in a shooting event like this one.
First, the shooting could be intentional, or as New Mexico law puts it, with malice. I’ve no reason to believe that Alec Baldwin intended to shoot Ms. Hutchins, so I’ll not spend much time on this. I will note, if such evidence were to develop we’d be looking at a crime premised on an intentional killing, meaning either murder or voluntary manslaughter. The current known facts do not, however, support a charge of intentional killing.
Second, the shooting could be the result of recklessness on the part of Alec Baldwin. Reckless conduct involves a person knowingly creating an unjustified risk of death or serious bodily injury, and intentionally ignoring that risk.
A classic example of such recklessness would be drunk driving, where the driver got himself intentionally intoxicated and then operated a motor vehicle. Everyone knows that driving a car while drunk creates an unjustified risk of death or serious bodily injury, and actually driving the car is deliberately ignoring that risk. Accordingly, operating a motor vehicle while drunk qualifies as reckless conduct. Reckless conduct is grounds for both criminal and civil liability for whatever harm results.
When a death results as a consequence of reckless conduct, the appropriate criminal charge is some form of involuntary manslaughter. The killing was not intentional, so neither murder nor voluntary manslaughter would be appropriate charges. The intentional creation and ignoring of the risk of death, however, with death resulting, is the traditional definition of involuntary manslaughter.
Third, the shooting could be the result of mere negligence. Negligence occurs when one violates the generalized legal duty to not cause unjustified harm or loss to others. Unlike recklessness, negligence does not require that one knowingly create and ignore a risk, it merely requires that one should have been aware of the risk created when engaging in the conduct. Negligent conduct is grounds for civil liability, but usually not criminal liability. (If you see the phrase “criminal negligence,” you should read that as “recklessness.”)
Importantly, there are some instances of negligence that a state might recognize as being sufficiently inherently dangerous that it is treated as recklessness and therefore grounds for criminal liability—and we’ll see in a moment that New Mexico has precisely such a provision in the context of the negligent handling of firearms.
Fourth, there could be no liability whatever, either civil or criminal, if there was no legally relevant mental state—this can occur in cases of genuine accident, in which the person involved is believed to have literally no responsibility for either the action that caused the harm or for the resultant harm.
If, for example, a portion of the set had collapsed unexpectedly and unpredictably on top of Alec Baldwin, and while being crushed to the ground he had reflexively and involuntary clenched his hand and fired a fatal shot into Ms. Hutchins, his conduct and her death might fairly be characterized as a genuine accident. Accident creates neither civil nor criminal liability and is a recognition that sometimes bad stuff just happens.
New Mexico Law on Involuntary Manslaughter
Interestingly, New Mexico law provides for two avenues by which Alec Baldwin’s conduct in shooting dead Ms. Hutchins can fairly be characterized as felony involuntary manslaughter.
First, one can apply the usual doctrine of involuntary manslaughter based on recklessness, as already described.
Second, New Mexico law recognizes the unique dangerousness of firearms, and although negligence is usually not grounds for criminal liability, New Mexico law holds that the negligent handling of a firearm that results in death will be treated as reckless conduct and be sufficient to qualify as involuntary manslaughter.
We find the relevant law in the New Mexico manslaughter statute,:
Manslaughter is the unlawful killing of a human being without malice.
B. Involuntary manslaughter consists of 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.
Involuntary Manslaughter Based on Recklessness
The second half of that statute sets out the reckless form of involuntary manslaughter: “commission of a lawful act which might produce death … without due caution and circumspection.” That’s the intentional creation of an unjustified risk of death and deliberately ignoring that created risk (“without due caution and circumspection”).
It has been established that Alec Baldwin pointed a firearm at Ms. Hutchins and shot her dead, presumably unintentionally—and, it naturally follows, that he did not first make the modest effort of ensuring that the gun was not loaded with live ammunition before engaging in this fatal conduct.
Guns are considered inherently dangerous instruments, because of the inherent dangers that result if they are used irresponsibly. All adult Americans are reasonably presumed to know that guns are inherently dangerous and must be handled with exceptional care.
This would be particularly true of someone like Alec Baldwin, who has handled guns likely hundreds of times as an actor, and who is on the board of an organization seeking tighter controls on gun ownership precisely because of their dangerous nature.
All adult Americans are therefore presumed to know that pointing a loaded firearm at someone creates a risk of death or serious bodily injury to the person at the far end of the muzzle.
There are circumstances in which creating such a risk might be justified—as in self-defense, for example, where the risk to the life of the target is offset by the preservation of the life of the person holding the gun. But there is nothing about being an actor on a set that outweighs a risk to the life of the person at which the gun is pointed.
Further, avoiding the creation of this unjustified risk to human life on a movie set would require no arduous or particularly time-consuming effort—the person holding the gun need merely take a moment to ensure that the gun is not, in fact, loaded with live ammunition. If this is done, no loss of life can occur, because a gun confirmed in the moment to be unloaded is not magically capable of inflicting death.
From the moment the gun in this instance was placed in Alec Baldwin’s hand, there was only one person on the face of the Earth who was in a position to ensure that gun was not loaded with live ammunition before he pointed it at Ms. Hutchins with fatal effect—and that person was Alec Baldwin.
Indeed, Alec Baldwin was the only person on the face of the Earth uniquely positioned to negate any prior negligent or reckless preparation of that firearm in his hand. Had members of the production crew taken the gun out to the desert for some recreational live fire and left a round in the gun, had the set armorer of very limited experience failed to keep the weapon adequate secured, had the Assistant Director who handed Baldwin a purportedly “cold” gun failed to actually confirm that unloaded status—all that is negated if Alec Baldwin merely takes a moment to personally confirm there is no live ammo in the gun before intentionally pointing it at Ms. Hutchins.
Note that the pointing of a gun without ensuring that it is unloaded fully qualifies as reckless conduct in and of itself, and requires no compounding conduct to achieve that status. Nobody would accept having a loaded gun pointed at their head on the promise that the trigger would not be pressed, for example—including, I expect, Alec Baldwin himself. As a result, whether Baldwin actually pressed the trigger or incidentally fired the gun by dropping the hammer is inconsequential to his reckless handling of the gun. Merely pointing a loaded gun at another person creates an unjustified risk of deadly harm and the deliberate ignoring of that risk–and that is the very definition of recklessness.
On this law and the undisputed facts alone, then, we have everything required to conclude that Alec Baldwin’s shooting of Ms. Hutchins qualifies as involuntary manslaughter based on recklessness under New Mexico law.
As it happens, however, recklessness is not even required to find involuntary manslaughter in Alec Baldwin’s conduct—mere negligence is sufficient because the death was caused by firearm.
Involuntary Manslaughter Based on Mere Negligence
Usually, mere negligence is sufficient to create civil liability for damages, but not to create criminal liability.
There can, however, be exceptions to this general rule, particularly in circumstances where a state legislature finds such a degree of dangerousness that they will allow for mere negligence to be adequate grounds for criminal liability.
Recall that manslaughter based on recklessness requires the intentional creation and ignoring of an unjustified risk of death. If those conditions are met, it matters not at all whether the underlying conduct is otherwise lawful or unlawful.
Manslaughter can also be found in the absence of recklessness, however, if the underlying conduct is actually unlawful in and of itself. We find that provision here:
Manslaughter is the unlawful killing of a human being without malice.
B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, …
The portion of that language stating “not amounting to a felony” is intended to distinguish an unintentional killing that results from a misdemeanor—here defined as a form of involuntary manslaughter—from an intentional killing that results from a felony—which would probably be felony murder, a crime outside the scope of this discussion.
That provision of §30-2-3 tells us that even if Alec Baldwin’s conduct does not rise to the level of recklessness—and it does—it nevertheless still qualifies as involuntary manslaughter if it qualifies as an “unlawful act not amounting to a felony.”
And as it happens, negligently handling a firearm such as to endanger the safety of another qualifies as a misdemeanor under New Mexico law, under independent New Mexico statute:
A. Negligent use of a deadly weapon consists of:
(3) endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner; or
Whoever commits negligent use of a deadly weapon is guilty of a petty misdemeanor.
So, the question then becomes, does Alec Baldwin’s conduct qualify as “endangering the safety of another by handling or using a firearm in a negligent manner”?
And the answer is certainly yes—and we know that because of the outcome that resulted.
Had Ms. Hutchins not suffered harm, it might be an arguable question whether Baldwin’s conduct qualified as negligent. That she suffered harm, however, settles the question definitively, based on the legal doctrine of res ipsa loquitur.
Literally translated from Latin, the phrase res ipsa loquitur would read as ‘the thing speaks for itself.” As applied as a legal doctrine, it means that we infer that an act was negligent precisely because the feared harm actually occurred.
That is, the specific elements of negligence—that the harm resulted from the actor breaching a duty of care—are inferred if the conduct in question actually resulted in the harm caused.
Here, the very outcome of Ms. Hutchins death allows us to infer, under the doctrine of res ipsa loquitur, that Alec Baldwin’s conduct in causing that harm qualifies as negligent.
And given that the underlying question involved the handling of a firearm, we have the misdemeanor crime of negligent use of a firearm under § 30-7-4.
And given that the underlying conduct qualifies as “an unlawful act not arising to a felony,” we have established involuntary manslaughter under § 30-2-3 even in the absence of a showing of recklessness.
Alec Baldwin Keeps Digging in Interview
I mentioned at the start of this that Alec Baldwin’s interview by George Stephanopoulus violated the first rule of finding that you’ve dug yourself into a hole—stop digging. I mean, of course, that not only did Alec Baldwin’s interview not help his legal position, it likely weakened one that already appears entirely untenable.
Baldwin Acknowledges Deadly Risks of Guns On Set
At one point in his interview, for example, Baldwin states that many millions of “bullets” are fired on the sets of films and TV shows, and only “four or five people were killed.” I imagine he thinks that these favorable odds are helpful to his narrative that he has no criminal liability here.
In fact, it does the opposite.
First, the fact that all those other millions of times no death resulted, and now Alec Baldwin is among the outlier of “four or five people killed” suggests that his own conduct that resulted in the death of Ms. Hutchins was precisely the recklessness or negligence required for involuntary manslaughter here.
When everybody else engages in some conduct and nobody dies, and you engage in similar conduct and somebody dies, that doesn’t suggest that your conduct was safe and responsible.
Second, the fact that Baldwin is even aware that “four or five people were killed” in the handling of firearms on sets affirms that he was, in fact, aware of the risk of death involved in such conduct, and thus the need to be particularly vigilant about safety.
One doesn’t escape recklessness or negligence simply because the odds are ever in your favor. Most drunk drivers don’t kill someone as they are swerving their way home—we nevertheless convict them of involuntary manslaughter when they do so, because they intentionally created the risks of death and ignored that risk.
Baldwin Was Aware of Both Safer and Less Safe Gun Protocols
At another point in his interview Alec Baldwin notes that in his movie career he’d sometimes had armorers and prop people who were extremely vigilant about firearms safety, and others that were less so.
Clearly, these two approaches are not similarly situated in terms of safety and risk to life. A relatively new actor who might only have been exposed to relaxed safety standards might be forgiven for accepting that as some industry standard. An experienced actor who had been exposed to both cannot be excused for not demanding the approach most consistent with safety and avoiding human death.
Baldwin Was Aware of “Responsibility to Not Be Reckless and Careless”
At yet another point in the interview, Alec Baldwin points out to Stephanopoulus that “everybody who makes movies has a responsibility not to be reckless and careless.” Everybody. In fairness, that remark was in the context of “not being “reckless and careless with the money that you’re given” to make the movie. But if everybody has a responsibility to not be reckless and careless with even mere money, why would that degree of responsibility be any less in the context of human life?
Baldwin Violated His Own (Too Low) Standard of Actor Responsibility
At yet another point in the interview, right at the end, Alec Baldwin is asked what is the actor’s responsibility in this kind of gun handling situation. His response: “The actor’s responsibility is to do what the prop armorer tells them to do.”
First, I would argue that this standard does not excuse either negligence or recklessness when human life is at stake, and the actor is the final person in a position to break the chain of causation that will result in death, and can do so by merely taking a moment to ensure the weapon is not loaded with live rounds.
Second, even if that standard did excuse negligence or recklessness—Baldwin failed to meet his own stated standard. He was not handed a gun by the prop armorer, and it was not the prop armorer who purportedly told him the gun was “cold.” It was AD Hall. The armorer was not, in fact, present.
The very fact that the roles of assistant director and prop armorer are assigned to two different people suggests that neither is competent to perform the duties of the other.
Baldwin opted to conduct himself in a manner that failed to rise to even his own too-low level of responsibility—handling the firearm in the manner the prop armorer told him would be safe—and his failure to do so does nothing to relieve his negligence and recklessness in this instance.
Does Political Upside Offset Legal Downside?
In conclusion, I see nothing in this interview by Alec Baldwin that does anything to improve his legal position on the legal merits, if anything it hurts his legal position on the legal merits.
That said, the legal merits are not the only factor at play here. We must also consider political drivers that are certainly at play. Unfortunately, political factors too often play a role in prosecutorial decision-making these days, and that is only more so when the matter involves a movie star of even moderate stature working in an industry with obvious political leanings.
Indeed, the more dire Alec Baldwin’s legal position on the merits, the more important are the political levers available to him.
It is entirely within the discretion of the local prosecutor in the Santa Fe area, where the shooting occurred, whether Alec Baldwin is charged with felony involuntary manslaughter and/or misdemeanor gun negligence, or neither. Any just prosecution would require as a condition that legal merit exists—but here we certainly have legal merit.
Legal merit alone, however, does not compel a prosecutor to bring charges. She may at her discretion simply choose not to—simply saying that her office has limited resources and she’s chosen to focus those resources on cases other than Alec Baldwin’s shooting Ms. Hutchins dead would be a perfectly typical application of such discretion.
If Alec Baldwin appears doomed on the legal merits, should he be charged—and, to my eye, he certainly does—then it is all the more important that he foster a political environment that will help discourage the local prosecutor from bringing charges in the first place.
Key to that would be to provide the prosecutor with the building blocks for a façade of reasonable application of typical prosecutorial discretion. The prosecutor need not have a rock-solid reason to not bring charges, she need merely have some reason, however tenuous.
And perhaps that is the real strategy behind this interview. If the legal position is already doomed on the merits, one is unlikely to suffer more substantive legal harm from the interview, however it goes.
If, on the other hand, the interview can foster a favorable political environment discouraging prosecution, then you might never have to fight the legal battle on the merits at all. And that’s arguably even more of a win than would be an acquittal at trial (not that an acquittal at trial would be likely on these facts and law).
And that’s all I have for all of you at the moment.
Until tomorrow morning:
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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