Was Alec Baldwin reckless?

“I didn’t know the gun was loaded” was Miss Effie’s “alibi” in the hit song released by the Andrews Sisters in 1949. But is it an alibi if you don’t check first? New Mexico prosecutors do not believe that “I didn’t know the gun was loaded” is a sufficient alibi for actor Alec Baldwin or “armorer” Hannah Gutierrez-Reed, both accused of involuntary manslaughter in the fatal shooting of cinematographer Halyna Hutchins. Gutierrez-Reed claims she was not even present at the time of the incident.

Lawyers for Baldwin and Gutierrez-Reed predicted that their clients would be exonerated. But Gutierrez-Reed told investigators that while she did check each of the six cartridges in the gun, “I wish I would’ve checked it more.”

Under New Mexico law, involuntary manslaughter is the “unlawful killing of a human being without malice committed in the commission of … a lawful act which might produce death … without due caution and circumspection.” 

Hutchins was tragically killed on set as Baldwin, the star and producer of a called movie “Rust,” set in late 19th century Kansas, drew an old-fashioned revolver from its holster, pointed it in her direction and fired a lethal shot. Baldwin says he didn’t know the gun was loaded, but it would have been a simple enough matter to check.

Many facts surrounding the case are still unknown. How did a loaded pistol get on set? What training or experience did Baldwin have in the use of firearms? Had he ever fired a weapon before? Under the set protocols, as Baldwin should have understood them, who had responsibility to see that the gun wasn’t loaded? How many rounds were in the gun’s chamber? Were the other bullets, if any, blank or were they all loaded cartridges? What is the evidence that Baldwin exercised “due caution and circumspection”?

The legal case against the pair will turn on what the element of “duty” means to the New Mexico jury.

A gun is obviously a dangerous implement, and the Santa Fe prosecutor, Mary Carmack-Altwies, said that Baldwin had “an absolute duty to know what is in the gun that is being placed in his hand is safe.”

The prosecutor’s statement opened the floodgates to a storm of controversy. Former federal prosecutor turned legal analyst Harry Litman tweeted a sharp rebuke: “Not sure what [absolute duty] means, but it definitely is not a statement of the applicable law.”

Dave Halls, the first assistant director of “Rust,” who has made a deal with prosecutors in which he agreed to plead guilty to negligent use of a deadly weapon, called out “cold gun,” (indicating no live ammunition) minutes before Baldwin leveled the gun at Hutchins and pulled the deadly trigger. Halls certainly appears to own his share of the blame.

Cardozo long ago condemned “the pretense of knowledge where knowledge there is none.” The case centers on the concept of legal duty. In his excellent new book, “The Bill of Obligations,” Richard Haass elaborates that “obligations between individual citizens” are one of the “cornerstones of a successful democracy.”

One of these obligations settled in our law is to conduct oneself in a way that ensures the safety of others. Obviously, Baldwin did not know the gun was loaded, but he did have the legal obligation to exercise some level of foresight in the handling of a potentially dangerous weapon. After all, the gun could have been loaded, as indeed it was. It took no particular expertise or training in the use of firearms to know that a loaded pistol can be an instrument of death. So, make sure it’s unloaded and, even then, never point it at someone.

Baldwin pointed the gun at Hutchinson, who was standing near the camera. It was reckless to point the gun at Hutchinson. In basic training in the Army, I learned never to point a weapon, loaded or unloaded, at another human being (unless, of course, it was the enemy).

The public likes to see action on the screen. So, filming a movie that creates the illusion of action is a dangerous business. In the decade between 1980 and 1990, there were 37 deaths relating to accidents during film stunts. Most of these involved helicopter accidents.

Incidents, however, involving supposedly unloaded guns are not unknown, and there are two cases in point. In 1984, actor Jon-Erik Hexum played Russian roulette with a 44 Magnum loaded with a blank. The gunshot fractured his skull and caused massive cerebral hemorrhaging when bone fragments were forced through his brain. He was rushed to the hospital, where he was pronounced brain dead.

And in 1993 American actor and martial artist Brandon Lee, while filming “The Crow,” was accidentally shot and killed in North Carolina with a .44 magnum “prop gun” that was intended to fire blanks but contained a “squib load” or bullet fragment left behind after a dummy round had been inserted and removed. Lee’s co-star, Michael Massee, was not charged criminally in the incident.

Legal scholars argue that the decision to charge Baldwin is within the discretion of the prosecutor. Former federal judge and Harvard Law lecturer Nancy Gertner sees the blame falling more heavily on the other members of the crew, including the armorer. “These are people along the continuum here who had direct responsibility for that gun and failed in that responsibility,” said Gertner. “[I]n one sense, Baldwin is the least culpable on that line.”

What that “one sense” is may be unfathomable. In another sense, Baldwin may be the more culpable. To be sure, an armorer who provides a gun for a movie scene has a duty to check that the gun is not loaded; the consequences of not checking are too devastating. But the actor who is to point a real pistol at another human being, and pull the trigger, also has a duty to check, and does not shed the legal or moral responsibility elsewhere. An actor firing a supposedly “cold” gun at another human being is the person with the last clear chance to avert a senseless tragedy.

Baldwin’s lawyer said that his client “relied on professionals with whom he worked who assured him that the gun did not have live rounds.” But, considering the risk involved if the “professionals” are wrong, the actor may be reckless in not checking before he aims and fires off a lethal shot.

When I was in law school, we considered the hypothetical case of a father who gives his son the keys to the car when he knows the son may drive recklessly. The son recklessly kills someone, and both should be guilty of involuntary manslaughter, although the punishments may differ. 

Baldwin may be found guilty of involuntary manslaughter, even if his conduct was not intentional, assuming his conduct was “reckless.” Section 2.02 of the Model Penal Code defines criminal recklessness as follows: “A person acts recklessly…when he consciously disregards a substantial and unjustifiable risk that [death] will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of his conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”

What does this formulation mean? It means simply that the jury listens to all the legal arguments read to them by the judge about involuntary manslaughter and concludes that Baldwin’s conduct was so outrageously reckless that they will clobber him with criminal penalties.

Baldwin’s conduct took a human life. When a gun is involved, he cannot claim to have relied on others. What happened fits the definition of involuntary manslaughter quite neatly.

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