A Gun in Hand, A Gun in Play

 "You always handle a gun like your life and the life of anybody around you depends on how safe and careful you are, 'cause it does.”

Bill Wallace

A news article published a few days ago featured comments by actor Mickey Rourke concerning the criminal charges brought against Alec Baldwin. Mr. Baldwin, it is alleged, is criminally responsible for the tragic shooting death of Halyna Hutchins based on his handling of a firearm on a movie set.

Mr. Rourke's comments were based on the premise that "most actors" aren't adept with firearms, that they rely on an armorer to hand them a gun that is properly configured. Of course Mr. Baldwin has the right to rely on the expert advice of the professional gun person. Of course being told the revolver was a "cold gun," apparently a Hollywood term for a firearm that is not loaded with live, projectile-firing ammunition, absolves Mr. Baldwin of personal responsibility. Those are the arguments Mr. Rourke advances.

After an admittedly cursory look at the annotations available for New Mexico's involuntary manslaughter statute, the "reasonable reliance on an armorer" defense seems something of a stretch. The case will turn on whether Mr. Baldwin was himself criminally negligent in handling the revolver.

This is where we leave the fairway, bounce over the rough and end up in the weeds (I'm not a golfer, but I think that works as a metaphor). Negligence is, briefly, a duty of care toward someone, a breach of that duty, damages recognized by the law and a causal link between the defendant's action and the injury that resulted. Okay so far?

It's not hard to say that a person with a real gun in their hand owes a duty of care to anyone within range of the weapon. It is especially easy to note that duty toward anyone at whom the gun is pointed, right? Since the bullet struck Ms. Hutchins... The legal concept is res ipsa loquitur - the thing itself speaks.

Damages - the poor woman, innocent of any wrongdoing whatsoever, died of the bullet wound she sustained. It's a shocking and tragic outcome.

Causation - Mr. Baldwin states that he was manipulating the hammer, but did not pull the trigger. Since this particular revolver is a "single action" weapon, manually pulling the hammer back is required with each shot. Hence the Wild West fanning, the cocking the hammer with the thumb, etc. A weapons expert (or several) will examine the handgun and testify whether the gun could misfire. 

The whole case depends on how a judge or jury answers the breach of duty question. Here, Mr. Baldwin faces a serious uphill battle, and where Mr. Rourke might have his (only) point. Because the concept of reasonableness enters the conversation, here, this becomes the question - was it reasonable for Mr. Baldwin to rely on the expertise of the armorer, pronouncing the gun "cold" and therefore generally incapable of producing the death of another?

Every police recruit we trained at the range should answer a resounding "No." The first rule of firearms safety is to treat every gun as though it is always loaded. The one caveat to this rule is that if someone has personally checked, personally verified that the weapon contains no live rounds, it can be deemed safe for certain purposes. Even then, if it is necessary to press the trigger (Glock pistols require that the trigger be pulled for disassembly) it is never permissible to point it at anything other than an object that won't die if, somehow, a mistake has been made.

For a police officer, it is inexcusable not to check the status of a weapon someone hands them. It happens, and tragedies occur, but it's still inexcusable.

Can the same be said of Mr. Baldwin? The question of criminal culpability rests on how the state of New Mexico views the industry standard (is it sufficiently safe to grant it deference), and whether Mr. Baldwin's reliance on accepted industry practice (and the degree to which the industry practice was adhered to) was reasonable by law.

Several articles are available concerning the industry standards when real firearms are present. Those standards have changed over the years after a number of other unfortunate, tragic accidents on set. In some cases, the "handguns" are solid material, typically some kind of rubber, and the sight and sound effects are added later. In others, they are replicas that appear to function like the real thing, but do not accept ammunition of any kind.

So, let's sum up, before we disappear down the rabbit hole. This case probably turns on whether New Mexico law provides for a defense similar to the one Mickey Rourke articulated - it was reasonable under the law (and therefore not negligent or reckless) to accept the word of the production's armorer that the gun in hand was not a gun in play, and that Mr. Baldwin had no duty of care to ensure it was unloaded, and always pointed in a safe direction.

Under the facts as they are known, how would you - called to be a juror - vote?

I'm pretty sure I'd have suggested Mr. Baldwin, and anyone else handed a firearm claimed to be "cold," say "Show me" if they felt ill equipped to verify the weapon's status themselves. And, that may be the position of the state of New Mexico.