Who's Culpable for The Baldwin Shooting? | Opinion

The shooting of Halyna Hutchins is first and foremost a tragedy. It should never have happened. It resulted from cost- and corner-cutting. As a caring human being, I extend my warmest condolences to Hutchins family.

As a criminal law professor for half a century, the case fascinates me. It is one I would have discussed in class and might well have given as an exam question.

In general, ordinary negligence is not a crime. For example, Minneapolis police officer Kim Potter's mistake of pulling out the wrong weapon—which resulted in her killing Daunte Wright—should never have been charged as a crime. And it wouldn't have been, if not for the George Floyd and other police killings.

So, what about the shooting of Halyna Hutchins? Under New Mexico law, negligent homicide by firing a gun is a petty misdemeanor. For it to rise to the level of a felony requires a higher level of culpability.

There is an easy question of culpability and a hard one in this case. The easy question is whether there is culpability as a general matter. The answer is clearly yes. The killing of Halyna Hutchins was a crime. It was the result of gross negligence and willful decisions to cut corners by hiring inexperienced—and as it turns out, incompetent—professionals, whose job it was to prevent just this sort of tragedy.

The hard question is who, if anybody, is criminally responsible? This may sound like a foolish question—if I am so sure there was a crime, how can I have any doubt about who the criminal is? But there is an enormous difference between concluding that criminal conduct occurred and being able to pinpoint a particular individual against whom guilt can be established beyond a reasonable doubt.

There is no presumption of innocence as to whether a death should be deemed criminal. The presumption of innocence attaches not to events, but to individuals. So, strange it may seem, there can be a "crime" without there being a "criminal." That may well be the case here.

Alec Baldwin
EAST HAMPTON, NEW YORK - OCTOBER 07: Hamptons International Film Festival Chairman, Alec Baldwin attends the World Premiere of National Geographic Documentary Films' 'The First Wave' at Hamptons International Film Festival on October 07, 2021 in East Hampton, New York. Mark Sagliocco/Getty Images

It will be exceedingly difficult, based on the evidence as we now know it, to prove beyond a reasonable doubt that Alec Baldwin is guilty of a crime. Yes, he had responsibilities as the last actor handling the gun and as one of the producers who oversees the entire enterprise. That may be enough for civil liability, but it will be difficult to prove criminal negligence because the person responsible for handing him the gun assured him that it was "cold."

So, the question then becomes, does the person who handed Baldwin the gun bear criminal responsibility for not checking it? That depends on that person's precise role, and what he or she did or didn't do.

Though several people may be charged together, this crime cannot be charged as a conspiracy, because there was probably no agreement, explicit or implicit, to allow a loaded gun on the set. Rather, the combined actions and inactions of a number of interrelated people brought about the tragedy.

The death of Brandon Lee in 1993 made clear that, when it comes to accidental shootings on movie sets, there is civil responsibility, and increased the likelihood that one or more people would be charged with a crime. But the more recent case is not a slam dunk under New Mexico law. Nor would it be under the laws of most other jurisdictions.

The key question remains: how do we prevent this kind of utterly preventable tragedy from ever occurring again? I played an advisory role in the Brandon Lee case, and I thought its result—no criminal prosecution, but considerable civil liability—would change the realities on every movie set. That didn't happen, as evidenced by this tragedy. Will it now happen? Or will profits still be placed before safety?

There is one simple and obvious solution. Laws must be passed absolutely prohibiting the presence of any fireable weapon or any projectile capable of being fired from a weapon on any movie set. The Second Amendment is not for movie sets. Real guns have no place in the hands of actors. CGI technology has improved immeasurably since the Brandon Lee case. The firing of every gun in every movie must be filmed using CGI rather than gunpowder, blanks or real guns. This should have been done immediately following the Brandon Lee case. It must be done now. No questions asked. Life is more important than making movies or saving a few dollars.

Let the preventable death of Halyna Hutchins serve to prevent future deaths on movie sets.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.