In an opinion piece, the Harvard Law School professor described the incident as a "criminal killing" which happened while on the set of the movie "Rust" in Santa Fe, New Mexico. Baldwin is the lead actor and co-producer of the movie project.
According to a court document, Baldwin was reportedly told he was handed a "cold gun" before firing at the camera, hitting Hutchins and Souza. It remains unclear how the weapon was loaded with a live round.
Two things are clear, according to Dershowitz: "Guidelines seem not to have been followed in this case and the existing guidelines seem insufficient." (Related: BREAKING: Alec Baldwin accidentally shoots and kills cinematographer (and wounds film director) with REAL, functioning gun, not "prop gun" as falsely reported by the fake news media.)
He continued: "It is likely, therefore, that the killing of Halyna Hutchins could constitute a homicide – that is a criminal killing. The remaining questions are who might be criminally responsible for the killing and what degree of homicide fits the evidence."
Dershowitz wrote that Baldwin was clearly not aware that he was firing a gun capable of expelling a lethal projectile. But his role reportedly was not limited to passively being an actor. He may have had some responsibility as one of the several producers of the film.
"The nature of the role of producers varies from film to film, and it is unlikely that Baldwin's role included responsibility for set safety. Some may think that it was not simply enough for him to accept the word of an assistant director about the gun's safety, that he perhaps should have independently inspected the gun.
"It is unlikely, however, that such an omission would result in criminal responsibility."
Attorney Andrew Branca, an internationally recognized expert on self-defense law, also weighed in on the case. Branca said the fatal shooting could be argued to be an accident or be classified as recklessness or involuntary manslaughter. The attorney noted that involuntary manslaughter in New Mexico would be classified as a fourth-degree felony, which is typically punishable by up to 18 months in prison and a fine of $5,000.
Branca outlined the hypothetical case that Baldwin was negligent in the killing. "In our hypothetical with the defective gun, for example, it may be true that the discharge of the gun was not foreseeable by Alec Baldwin and therefore not really in his control. But the direction in which the gun was pointed certainly was in his control," Branca said.
Weapons expert Bryan W. Carpenter noted that Baldwin broke the number one rule of firearms safety when he pointed a gun at people. "Loaded or unloaded, a weapon never gets pointed at another human being," Carpenter said.
Carpenter warned that whenever a gun is handled on a TV or movie set, "you never let the muzzle of a weapon cover something you don't intend to destroy."
The Santa Fe County district attorney said on Tuesday, Oct. 26, that she was not ruling out criminal charges in last week's fatal shooting on a film set. "We haven't ruled out anything," District Attorney Mary Carmack-Altwies said in a telephone interview. "Everything at this point, including criminal charges, is on the table."
Carmack-Altwies said that the investigation is focusing on ballistics in an effort to determine what kind of round was in the gun that killed Hutchins, and who had placed the ammunition in the gun.
"There were an enormous amount of bullets on this set, and we need to find out what kinds they were," Carmack-Altwies said. The detectives recovered three revolvers, spent casings and ammunition in boxes, loose and in a fanny pack while executing a search warrant on the set, according to an inventory of the items. The inventory did not specify what kind of ammunition was found on the set.
The shooting occurred on Oct. 21 on the set of a church where Baldwin was rehearsing a scene for "Rust."
According to affidavits included in applications for search warrants, Dave Halls, an assistant director on the set, took the gun off a cart where it had been placed by the film's armorer, Hannah Gutierrez-Reed. Halls handed the gun to Baldwin, who was rehearsing inside the church, and said it was a "cold gun" – indicating that it contained no live rounds and was safe for Baldwin to handle.
Baldwin then rehearsed a scene that involved "cross drawing" a revolver and pointing it toward the camera lens, according to the affidavit. When Baldwin fired the gun, he hit Hutchins in the chest and Souza in the shoulder.
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