Reckless, Wanton or Willful: Is Firing a “Cold Gun” Criminally Negligent?

Ben Lauter, MJLST Staffer

On October 21st, 2021, Alec Baldwin shot Halyna Hutchinson, ending her life. This tragedy was the result of Baldwin’s belief that in his hand at the time was a “cold gun.” In movie making, a cold gun is known to be a gun that does not have any live ammunition in it, or ammunition capable of endangering livelihood. Baldwin believed that he held a “cold gun” because that was what he was told when he was handed the weapon on set. He was given this disclaimer by the first director of the film, not the film’s armorer. After being handed the gun, Baldwin did not take any additional steps to confirm that the gun was indeed “cold.” Moments later, Baldwin triggered the gun to release a round striking Hutchinson and injuring another.

After this tragic event the State of New Mexico decided to bring the criminal charge of involuntary manslaughter against Baldwin and the film’s armorer, Hannah Gutierrez-Reed (the assistant director took a plea bargain and accepted probation). Both defendants are being charged with two different forms of involuntary manslaughter, one with a firearm enhancement and the other without the enhancement. This blog post will specifically examine the likely outcome for Alec Baldwin under New Mexico’s involuntary manslaughter statutes. As for Gutierrez-Reed, the suspicion is that she could be convicted on the charges brought against her given the nature of her career and alleged expertise.

The first thing to look at is the manslaughter statute and interpreting it. The passage dealing with involuntary manslaughter is Chapter 30, Article 2, Section 30-2-3. The passage codifies what is criminal when there is an unintentional homicide. The statute has different criteria for conviction depending on the conditions going on when the homicide took place. The different criteria is assigned based on if the death took place during lawful or unlawful acts.

The difference between the two is whether the defendant was doing something legal or illegal at the time they unintentionally killed someone. For example, if someone was robbing a bank and unintentionally killed someone during that time, the robber would be, at a minimum, charged with unlawful manslaughter. However, if the homicide happens in an environment where the individual is not doing anything illegal, such as driving the speed limit down the road, the charge would be lawful manslaughter. Determining whether it is lawful or unlawful manslaughter is a critical step because it determines the standard by which the defendant will be held.

In unlawful manslaughter cases, the standard the prosecution must meet is simply proving that the defendant intended to carry out the unlawful act – it would not matter if the homicide was intentional whatsoever. In a lawful manslaughter case, the standard switches to criminal negligence. Criminal negligence requires a demonstration of acting without due caution and circumspection, and/or conduct that is reckless, wanton, or willful. This standard is harder for the prosecution to prove. Essentially, a criminal negligence standard requires a conscious disregard of safety, not just a failure of reasonable care. The prosecution would have to find that Baldwin and/or Guitierrez-Reed didn’t only act with unreasonable care, which is easier, but that they consciously disregarded the safety of others when they handed, and when they used, the “cold gun.”

Applied to the case of Alec Baldwin v. New Mexico, it is likely that Baldwin will walk away without a guilty conviction. This is because Baldwin’s actions do not meet the standards to be found guilty of any form of manslaughter. First, Baldwin’s actions do not reach the strict liability threshold attached with an unlawful manslaughter charge because Baldwin was not engaged in any illegal acts at the time the homicide took place. He was on set of the film he was acting in, and taking actions necessary to make that film. Thus the State will attempt to convict Baldwin by arguing he committed involuntary manslaughter during a lawful act, which carries a criminal negligence standard. Criminal negligence, the term of art used in the statute, is frankly a misguided and confusing standard to use seeing as the common law interpretation of the statute is not a negligence standard at all. Criminal negligence is a reckless, wanton, or willful act. All three necessitate some kind of conscious action. Applied to the facts of the matter, there do not appear to be any details that indicate that Baldwin reflected upon what was going on and fired the gun anyhow. The record seemingly concludes that Baldwin was under the impression that the gun was cold and that he was going to be shooting takes for the scenes of the day. It seems unlikely that a decision-maker could conclude that Baldwin’s action ever amounted to a conscious decision over safety; an unconscious thought perhaps, but a negligent standard is not enough to lead to a conviction in a lawful act manslaughter case. Some additional rationale for the unlikely elevation to conscious disregard or reckless action revolve around the fact that Baldwin is an actor and has precedent for having no reason to believe he would be handed a live gun when he was told it is cold. An actor is considered to rely on the professionals on set.

One fact that may add an additional wrinkle is that on the day in question, instead of being handed the gun from the armorer, Gutierrez-Reed, Baldwin was handed the gun by the assistant director. This difference in protocol might trigger additional requirements for an actor to take additional steps to ensure that the gun was indeed cold, but there is a lack of case law that would suggest that is demanded. In an overall reading of the facts, Baldwin will still likely be acquitted of the charge as he did not act with criminal negligence when he fired the gun that killed Halyna Hutchinson.