Alec Baldwin manslaughter charge is a stretch

I have no particular reason to defend Alec Baldwin, but there's something unsettling about the manslaughter charges announced this week in the wake of last year's tragic shooting on the set of the movie "Rust". The controversial actor was holding a prop gun that he thought was filled with blanks; a live round fired and killed a cinematographer. A horrific accident, yes. But a crime? Here, matters are murkier.

Others have explained why the known facts don't quite match the elements of manslaughter under New Mexico law. I'd like to go further and ponder the theory on which the case apparently rests.

In announcing the indictment of Baldwin, the district attorney of Santa Fe County had this to say: "He has an absolute duty to know that what is in the gun that is being placed in his hand is safe."

Well, maybe. But if there's an absolute duty, what is its source? As far as I've been able to determine, no one has ever sought to charge an actor for discharging a live round from a prop.

Many news reports about the case have mentioned the 1993 death of Brandon Lee, who was shot by a fellow actor holding a prop gun during the filming of The Crow in North Carolina. The shooting, which occurred during the character's death scene, was ruled accidental. Many observers at the time questioned why a live round would ever be on a film set. Fair question — but the actor who fired the gun wasn't charged with a crime.

Over the years, several actors have shot someone with a gun thought to be safe. Yet I've found not a single instance in which the actor was charged.

A few examples:

Toward the end of a local Florida troupe's dress rehearsal of Steinbeck's Of Mice and Men in January 2009, the actor playing George shot the actor playing Lennie with what was supposed to be a prop gun — only it was loaded with a live round. The victim was struck in the head but survived. The troupe adopted new rules for the use of prop firearms on stage, but no criminal charges resulted.

During a 2015 re-enactment of a shootout in Tombstone, Arizona, one participant shot and seriously injured another. The shooter was using his own revolver — a real one — and, running late for the show, had forgotten that the gun was loaded with live rounds. A subsequent investigation found that five of the live rounds were fired. Nevertheless, the shooting was ruled accidental and no charges were filed.

In Ridgecrest, California, in 1991, an actor portraying Bill Sikes in an amateur production of Oliver! was shot and killed during dress rehearsal when fired upon by another actor, wielding a gun that was supposed to be loaded with blanks. Accident, no charges.

That same year, an actor in Oklahoma City was wounded when a prop gun fired on stage discharged a real round, which passed through a wall and struck the victim, who was not even in the scene. Again, ruled an accident, and no charges were filed.

These and many other instances over the past eight decades (the extent of my search) seem to accord with intuition: Sometimes the most tragic and horrific of accidents doesn't rise to the level of a crime.

It's true that guns are inherently dangerous. It's true that plenty of people have been convicted of manslaughter after deaths resulted from the discharge of firearms they thought were unloaded. But those cases nearly always feature an element tending to add culpability, such as a defendant who owns the gun in question, or who has a good reason to suspect that it might be loaded. Not a single one involved an actor wielding a prop on stage or set.

The usual industry rule has long been that responsibility for ensuring that firearms used on the set are safe rests with the armourer. Perhaps this is a bad rule; perhaps, going forward, actors should bear a larger share of that burden. But given the experience up until now, it's difficult to see how an actor can commit a crime by relying on the longstanding practice of the industry.

In the Rust case, the armourer already faces criminal charges. The assistant director who allegedly handed Baldwin the gun and called out that the weapon was "cold" has pleaded guilty. Even if prosecuting them is unfair — and it might well be — it's difficult to see the virtue of creating a new rule whereby the actor shouldn't rely on the assurances of the staff.

Maybe in the future, gun training should be mandatory for actors who will handle prop weapons. But the great majority of instances I've found involve not Hollywood but low-budget amateur productions. Moreover, firearm training is no panacea. In the Oliver! case mentioned above, the actor who fired the prop gun was a serving master sergeant in the United States Marine Corps.

All the foregoing relates to Baldwin the actor, which is what the prosecutors have addressed in their public comments. What about Baldwin the producer? The Rust crew, including the props team, has complained of difficult working conditions and long hours that might well have contributed to an unsafe environment. 

If true, that's serious wrongdoing. Still, in cases I'm aware of, the liability of the production company has been adjudicated in civil, not criminal, court. Here, Baldwin has settled a wrongful death action filed by the cinematographer's husband.

My point is not to excuse any of Baldwin's behaviour, and it's always possible that investigators possess evidence yet to be made public. Should the case ever go to trial, maybe prosecutors will be able to show that Baldwin indeed had good reason to suspect that the prop gun might be loaded. Absent that showing, however, the case does not look terribly strong — or, for that matter, terribly wise. An accident can be painful and tragic and provoke understandable public outrage, yet not fit the definition of a crime.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to the US Supreme Court Justice Thurgood Marshall.

Disclaimer: This article first appeared on Bloomberg, and is published by special syndication arrangement.