Is the Alec Baldwin shooting a homicide?

The accidental movie-set shooting of cinematographer Halyna Hutchins by actor Alec Baldwin reminds me of two tragic cases in which I was involved as a lawyer. The first was the tragic helicopter crash on the set of “The Twilight Zone” film, in which actor Vic Morrow and two children were killed. The second was the accidental shooting of actor Brandon Lee by a fellow actor during the filming of “The Crow.” The first resulted in an acquittal after a lengthy trial; the second was settled civilly, with no criminal charges brought.

I had thought that the end result of these tragedies was a significant change in the rules regarding safety on movie sets. With particular regard to the Brandon Lee shooting, the new rule was supposed to be that no weapon capable of firing should be allowed on a set; only mock guns that have never been fired and are not capable of being fired should be allowed. The argument that filming must be as realistic as possible was presumably rejected in favor of increased safety, but apparently that did not occur in this case.

The evidence is currently unclear as to how a real gun, with a real projectile, was handed to Baldwin, allegedly with an assurance that it was “a cold gun.” Such a verbal assurance does not come close to satisfying what should be the fail-safe standards. Moreover, there is evidence that people on the set were concerned about safety conditions prior to the tragedy. Indeed, some on set reportedly said there were prior incidents of guns misfiring.

According to a spokesperson from the sheriff’s office, the investigation of the incident is ongoing as to the projectile itself — “a focus of the investigation is what type it was and how did it get there.” Regardless of what the investigation reveals, it seems clear that preventable negligence contributed to the death. Based on prior cases, it should have been crystal clear that no gun or projectile capable of being fired should have been on the set or anywhere near Baldwin and other actors. According to numerous newspaper reports, film productions still often use real guns loaded with blanks. Accordingly, these involve actual gun powder and a cartridge that can provide “a realistic-looking flame and spark.” Burns and other minor injuries are common, but serious injuries and death are unusual.

Unusual, however, is not enough.

According to one film school expert who specializes in these matters, protocols “had to have been broken” in this instance because the film industry “has a very specific set of guidelines to prevent something like this from happening.” And yet, two things would appear to be clear: The guidelines seem not to have been followed in this case, and the existing guidelines seem insufficient to prevent accidents like this.

It is likely, therefore, that the killing of Halyna Hutchins could constitute a homicide — that is, a criminal killing. The remaining questions are who might be criminally responsible for the killing and what degree of homicide fits the evidence?

At this point in time, everyone must be presumed innocent. But it does not follow from the presumption of innocence that anyone is immune from rigorous investigation. It seems clear that Alec Baldwin was not aware that he was firing a gun capable of expelling a lethal projectile. But his role reportedly was not limited to passively being an actor; he may have had some responsibility as one of several producers of the film. The nature of the role of producers varies from film to film, and it is unlikely that Baldwin’s role included responsibility for set safety. But some may think that it was not simply enough for him to accept the word of an assistant director about the gun’s safety, that he perhaps should have independently inspected the gun before firing it. It is unlikely, however, that such an omission would result in criminal responsibility.

Others on the set almost certainly bore greater responsibility, and their roles should be investigated, their responsibilities pinpointed. Before anyone is charged with a crime, there must be evidence beyond a reasonable doubt of individual criminal culpability. Just because there was a crime, it does not necessarily follow that there is enough evidence to charge any particular individual.

The primary issue now is how to prevent a recurrence of tragedies like this one. Apparently it was not enough to make the film and insurance companies pay some money to the victim’s family in the Brandon Lee case. One of the major functions of criminal law is general deterrence — that is, to send a powerful message to potential future harm-doers that they, too, will be criminally punished if they endanger the safety of individuals in a manner that is deemed criminal. But it also is an important function of criminal law to provide fair warning to potential defendants that they are crossing what are often vague lines that seem clear only in retrospect.

What is needed now is a clear law that categorically prohibits any real gun or real bullet from being used on a film set. The law should require that modern cinematographic techniques, including computer generated images (CGI), must be used instead of gun powder and blank rounds to provide the necessary reality. With such a law in place, anyone who violates that clear rule would have been given fair warning that their actions would be deemed criminal. Even if the end result is slightly less realistic movie gun shots, which is doubtful, that is a necessary tradeoff to protect workers in the film industry.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump in the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.