Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
(CNN)On Thursday, Alec Baldwin fired what he was told was a safe “prop gun” on the set of the film “Rust.” Instead, the gun was apparently loaded with live ammunition, leading to the stunning death of cinematographer Halyna Hutchins and injury to the movie’s director, Joel Souza. Though an intense police investigation continues, it seems highly unlikely that Baldwin will be charged with a crime. So, after such a terrible tragedy, now what?
Paul CallanNormally, when a gunman aims a firearm at another person and deliberately pulls the trigger causing death, the charge of murder is easily sustained. However, that’s not the case here — and it has nothing to do with Baldwin’s power, wealth or notoriety. Here, both the law and the facts suggest he is innocent of any criminal conduct. On the contrary, he may be fairly viewed as one of the surviving victims of this horrific incident, likely to be haunted for the rest of his life by the role he unintentionally played in causing Hutchins’ death.The shooting occurred during a rehearsal on the film’s set in New Mexico. (Ironically, the plot of the movie concerns the aftermath of an accidental shooting.) According to an affidavit filed in a Santa Fe court last week, assistant director David Halls yelled “cold gun” before handing the firearm to Baldwin for the scene. The court document states that Halls didn’t know there were live rounds in the weapon, which was one of three prop guns that were set up in a cart by an armorer for the movie. In movie parlance, a “cold gun” is not loaded with any live ammunition but most probably with blanks, depending upon whether the gun is to be fired in the scene. Blanks are cartridges containing gunpowder and lightly sealed at their tip where the bullet would normally sit. A handgun firing a blank will replicate the recoil and muzzle flash from the barrel of the gun, but no bullet is expelled from the gun’s nozzle.The recoil and muzzle flash make the firing of the gun look real to the movie audience, though some directors now use CGI (computer-generated imagery) to replicate the effect while avoiding the danger of firing blanks. Even a “cold gun” loaded with blanks can cause injury, which is why armorers recommend a safe distance of around 20 feet or so from the weapon. Everyone on a movie set where guns are in use is supposed to be aware, as a result of training, of the danger potentially posed by the firing of blanks.Read MoreNow that guns can kill hundreds in minutes, Supreme Court should rethink the rights questionThe criminal law in New Mexico is like that in other US states and criminalizes deaths and injuries caused by recklessness or criminal negligence. These laws generally refer to the crimes of voluntary and involuntary manslaughter. In this case, prosecutors will be looking at the facts to determine who had the responsibility to examine the gun before it was handed to Baldwin to confirm that it was loaded only with blanks. Any person involved who failed to properly examine the firearms slated for use might be a potential target in the criminal investigation.Baldwin did not have the responsibility to stop the rehearsal and examine the gun’s cylinder to determine that it really was a “cold gun” loaded with blanks. By custom and practice in the movie industry, an actor has the right to rely on other individuals on set with the responsibility to ensure that prop firearms are safe for use. Police likely would want to interview the film’s “armorer,” Hannah Gutierrez, who has yet to provide a public statement, and the assistant director who passed the weapon in question to Baldwin.Something had to be seriously amiss on the set of “Rust” for this tragic shooting to occur. Who put live rounds in a gun that was supposed to be loaded with blanks, if anything at all? Why would any live rounds ever be placed in a gun slated for use by an actor on set?Get our free weekly newsletter
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While many of the facts have yet to be revealed by prosecutors, this case could even turn out to be a form of “depraved mind” murder under New Mexico’s murder statutes. If live ammunition was deliberately loaded into the firearm handed to Baldwin by an individual who knew the gun would be fired at other actors on set, this would become a murder case and not merely a tragic accident.Before Thursday’s shooting, several crew members quit the production over safety concerns that included gun inspections, according to the Los Angeles Times and other news organizations. At this point, we don’t know whether that has anything to do with this tragedy until we find out who put live ammunition in the gun. If it turns out to be an intentional act, the genre evoked by the film will sadly change from historical fiction to true crime.