The Alec Baldwin case: The law intersects with politics

Everything is politicized nowadays, even deadly tragedies.

Alec Baldwin, the poor player in an “I didn’t know the gun was loaded” scenario, pulled the trigger of a prop gun while filming on set for the film “Rust.” In a trice, the film’s cinematographer, Halyna Hutchins, was dead, and the film’s director, Joel Souza, was wounded.

Baldwin was removing a revolver from its holster and aiming toward the camera during rehearsal on the set in Santa Fe, New Mexico. Souza recalls he then heard “what sounded like a whip and then a loud pop.” Then, tragedy and curtain.

Could Baldwin be criminally prosecuted? You bet he could. New Mexico criminal statutes provide that involuntary manslaughter is a “fourth degree felony.” Involuntary manslaughter consists of manslaughter “in the commission of a lawful act … which might produce death … without due caution and circumspection.” Conviction of involuntary manslaughter is punishable “by up to 18 months in prison and up to $5,000 in fines.” Defenses are that the death was an accident and that the person was not acting in a reckless manner or with criminal negligence.

What is conduct that amounts to lack of “due caution” or “criminal negligence” or is “reckless”? There are no easy answers, except to use illustrations. If I drive with defective brakes, I am most likely “negligent.” If I drive knowing that I have defective brakes, I am probably reckless. The verdict is whatever the New Mexico jury says it is. Or, put another way, does the jury feel that Baldwin’s conduct was so outrageous that they want to clobber him with criminal penalties? The jury always decides with 20/20 hindsight.

It’s true that Baldwin has the defense that assistant director Dave Halls handed him the prop gun and told him it was a “cold gun.” Halls worked for the production company, which Baldwin controlled as executive producer. But the question is whether it is negligent in such circumstances to point a gun, even if unloaded, towards another human being. Don’t you assume the risk that the gun is loaded? Unless you check first, and Baldwin did not. Apparently, neither did anyone else.

Baldwin has much to answer for about whether he knew he was operating in an unsafe environment. He was executive producer of the film, and in charge of the set. The union film crew had apparently walked off the set after complaining to the production company about payment and housing. Baldwin employed non-union labor to replace them.

Seasoned New York attorney Ron Kuby thinks that “to the extent that Baldwin authorized the employment of incompetent scab labor…[who] failed to follow safety protocols], he faces serious liability.”

If the crew cut safety corners, Baldwin would be responsible. Apparently, less than a week before the incident, a stunt double had fired two accidental prop gun discharges after being told that the gun was “cold.” Prosecutors will argue that this put Baldwin on notice that there were gun safety issues on the set. Prosecutors will want to go into the safety procedures in force, how live ammunition got on the set and who inspected the gun before it was handed to Baldwin.

There are other factors that the jury may consider. Halyna Hutchins was a highly respected cinematographer. She was 42, married and the mother of a nine-year-old son. Such factors will weigh heavily upon the jury’s deliberations.

And then there is civil liability. If Baldwin is convicted criminally, his civil liability to the Hutchins family would seem to be a “slam dunk.” The criminal prosecution would run interference for the civil cases.

In our legal system, such issues are sorted out by judges and juries, not politicians or pundits. Yet, rightwing politicians couldn’t wait to pile on.

Ohio Republican Senate candidate J.D. Vance, who turned to politics after writing “Hillbilly Elegy,” publicly exhorted Twitter to allow former President Trump back on the platform so he could comment on the tragedy. Conservative pundit Candace Owens called the shooting “poetic justice” for Baldwin’s past criticism of Trump. And Rep. Lauren Boebert (R-Colo.) referred to Baldwin’s tweet last year in support of Black Lives Matter protestors, saying he was going to make bright-yellow T-shirts that read, “My hands are up. Please don’t shoot me.” Boebert posted a screenshot of Baldwin’s tweet, adding “Alec Baldwin, are these still available? Asking for a movie producer.”

As far as guns are concerned, New Mexico is the wild west. It’s legal for most adults to openly carry guns in public without a license. Licensure is only required for a concealed, loaded gun. Violate the law, and it’s a petty misdemeanor, the legal equivalent of a slap on the wrist.

Meanwhile, some on the far-right are ecstatic. They don’t like Baldwin. He has been the spokesman for various gun safety causes, and his mordant parody of Donald Trump on Saturday Night Live (SNL) cut them to the quick.

Forget that Baldwin may never get another part. Forget that SNL may not bring him back. Forget that he is facing possible criminal charges and a wrongful death action for millions that may leave him bankrupt. Forget about Halyna Hutchins. The far right doesn’t appear to care very much about her. Their focus is on making political hay.

James D. Zirin is a former federal prosecutor in the Southern District of New York.