Prosecutors in New Mexico are wrong in charging the actor Alec Baldwin with manslaughter in the accidental shooting of Halyna Hutchins. It is clear Baldwin did not intend to fire a loaded gun. It was a tragic accident, and accidents are not generally crimes, unless they involve some criminal state of mind. Whenever an innocent person is killed by the actions of another and there is a temptation to look for criminal liability on the part of the shooter, sometimes it can be found. Other times it cannot.

In this case, Baldwin claims that he was explicitly told the gun did not contain live ammunition. Even if prosecutors can cast doubt on this self-serving statement, it will be impossible for them to prove beyond a reasonable doubt that Baldwin believed he was risking Hutchins’ life by pulling the trigger or cocking the gun.

As Baldwin previously said in an interview “someone is responsible for what happened, and I can’t say who that is, but I know it’s not me.” It is true that someone, or several people, were responsible for allowing live ammunition to be in a gun that would be fired on the set. But absent a conspiracy—and there is no evidence that one existed here—criminal guilt is personal. Prosecutors would have to prove, not that there was negligence on the set but that Baldwin himself was personally responsible for the gross negligence that led to Halyna Hutchins’ death. Based on the evidence that has been made public, that burden will not be able to be met. An actor, even one who was also a producer, is entitled to rely on the assurance of the person responsible for armaments that he had been given a gun with no live ammunition.

New Mexico’s statute defining involuntary manslaughter, like the laws in many other states, vests enormous discretion in prosecutors because the terms of the statute are vague and subject to multiple interpretations. Here is what Section 30-2-3B provides: “Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.”

What constitutes “due caution and circumspection” is unclear as is the concept of a lawful act that might produce death “in an unlawful manner.”

Thomas Jefferson once said that for a criminal statute to be constitutional it must be capable of being understood by a person who reads it “while running.” Quite an interesting image! I am reading the statute while sitting, after studying and teaching criminal and constitutional law for more than half a century, and I’m not sure what it means. It is hard to imagine that Alec Baldwin could read this statute and understand that firing a gun that he had been told contained no live ammunition would either be an unlawful act or a lawful act that might produce deaths in an unlawful manner.

Early in our history the courts held that crimes must be narrowly defined and reasonably understandable from reading pre-existing statutes. Criminal law, unlike tort and contract law, is governed by statutes, not by common law. Vague terms cannot be fitted onto tragic circumstances that call out for retribution.

Actor Alec Baldwin
Actor Alec Baldwin arrives at the 2022 Robert F. Kennedy Human Rights Ripple of Hope Award Gala at the Hilton Midtown in New York on Dec. 6, 2022.
ANGELA WEISS/AFP via Getty Images

New Mexico prosecutors may receive some solace from a highly publicized accidental shooting case in Minnesota that resulted in the conviction and imprisonment of a police officer. Former officer Kim Potter believed she was firing a taser at a fleeing felon. But she had accidentally pulled her wrong firearm and shot the victim with live ammunition, killing him. There was no dispute that Potter shot the wrong gun by accident. So despite her long record of distinguished service to the police, she was convicted. That case is now on appeal and the conviction should be reversed, but because of the current atmosphere surrounding police shootings of African American men (the victim in the Potter case was a teenager), it is possible that the Minnesota appellate courts will come to the wrong decision.

But two wrongs do not make a right. The criminal law should be reserved for willful, deliberate, and intentional actions. At the very least, if negligence can serve as a basis for conviction, it should be the kind of negligence that the defendant could have anticipated would produce a tragic outcome.

Alec Baldwin is a rich and powerful celebrity. The law must be applied fairly to him, as it would be to others. Sometimes people like Baldwin are advantaged by their celebrity. Sometimes they are disadvantaged. The question is whether this criminal prosecution would have been brought if the person firing the gun was unknown. In a previous case an actor named Brandon Lee was accidentally shot and killed by a gun loaded with blanks, which unbeknownst to the shooter had shards of metal in the barrel that caused the tragic death. The shooter in that case was not charged, but the participants were sued civilly. (I consulted on that case.) That seems like the right decision. Everyone involved in the Baldwin case has been sued, and some have settled. That too seems like the right resolution to a tragic accident.

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