- The accidental death of cinematographer Halyna Hutchins on the set of "Rust" will likely lead to civil action, but it is unclear if criminal charges will be brought against the two crew members who inspected the prop gun held by Alec Baldwin prior to the fatal incident, lawyers said.
- Lawyers told CNBC that the case will definitely go to civil court.
- New Mexico authorities are still investigating the incident and prosecutors are in the process of researching potential charges should evidence support criminal charges.
The accidental death of cinematographer Halyna Hutchins on the set of "Rust" will likely lead to civil action, but it is unclear if criminal charges will be brought against the two crew members who inspected the prop gun held by Alec Baldwin prior to the fatal incident, lawyers said.
"It will go to civil court 100%," said Richard Kaplan, a criminal defense attorney. "There was someone who was killed on a movie set because of negligence. The family, of course, will do that and have the right to do that and everyone expects that."
While New Mexico authorities have not ruled out criminal charges in the case, Kaplan said, even with solid evidence of negligence, prosecutors may refrain from filing charges against members of the "Rust" crew.
The investigation is ongoing, Santa Fe County Sheriff Adan Mendoza said Wednesday during a joint news conference with New Mexico First Judicial District Attorney Mary Carmack-Altwies.
Investigators disclosed that 500 rounds were located on the set, which were a mix of blank ammunition, dummy rounds and, possibly, live rounds. This evidence will be submitted to the Federal Bureau of Investigation crime lab in Quantico, Virginia, for analysis, he said
"I think there's all kinds of scenarios that can play out here again," Mendoza told NBC's Miguel Almaguer in an interview Thursday. "We need to make a determination of who was responsible for bringing the rounds onto set and why they were there. And then ultimately, who was responsible for the safety of that firearm, and up until the firing of the firearm."
Mendoza said there wasn't any clear organization of ammunition on set and called the tragedy "totally preventable."
Carmack-Altwies said in a separate interview with Almaguer that New Mexico does not have a negligent homicide charge, instead an involuntary manslaughter charge would be used.
Involuntary manslaughter, in this case, occurs when a person or persons is engaging in a lawful act, but unintentionally kills someone by being negligent or not exercising due care. For example, this charge has been used in cases where someone is legally driving a vehicle, exceeds the speed limit and accidentally kills another person.
Involuntary manslaughter is a fourth-degree felony and carries a sentence of up to 18 months in prison and probation.
"We have started researching and started looking into potential charges," Carmack-Altwies said. "Not because we are looking at charging someone but because that's what we have to do as prosecutors."
This research is important because criminal cases are held to a higher standard and the district attorney will need to be confident that she can prove beyond a reasonable doubt that individuals on set were reckless, Kaplan said.
Stunts gone wrong
Attorneys have previously had a difficult time prosecuting Hollywood cases like this, he added.
One of the most well-known on-set fatalities due to a stunt gone wrong happened in 1982 on the set of the "Twilight Zone" movie. Actor Vic Morrow and two children, ages six and seven, were filming a Vietnam War battle scene in which they were supposed to be running from a pursuing helicopter. However, special effects explosions on set caused the pilot to lose control and crash into the three actors.
According to reports, the incident was caused by the detonation of explosions too near to the low-flying helicopter. This lead to damage to one of the rotor blades, the separation of the helicopter's tail rotor and the uncontrolled descent of the helicopter. It was determined that the accident occurred because of failed communications between the pilot and the film director.
In 1987, director John Landis was found innocent of involuntary manslaughter in their deaths. Three other filmmakers and the pilot of the helicopter were also acquitted. The production team was found responsible for several labor violations, which led to stricter child actor laws as well as harsher penalties for violations of safety protocols.
Lawyers have speculated that Baldwin will not face charges for firing the prop gun, but could be liable if the "Rust" producers are deemed to have been negligent.
Launching a defense
However, a history of on-set mishaps and a clear breach in safety protocol could lead to involuntary manslaughter charges against assistant director David Halls and armorer Hannah Gutierrez Reed, Kaplan said.
On Tuesday, the producers of "Rust" hired a high-profile law firm to interview cast and crew about the on-set shooting, a move that personal injury lawyer Miguel Custodio sees as the start of an aggressive defense.
"They will try to show that the producers are not liable, that the shooting comes down to aberrations or uncommon behavior displayed by individuals such as the assistant director or armorer," he said. "They will also try to show that the film production did nothing wrong in hiring these two individuals.
"That's very important because the plaintiffs are going to go after these people to show that their careers clearly demonstrate they were not fit to be on this set," he said.
Custodio said the law firm will try to gather evidence that shows that the production company didn't know there were live rounds on set.
A breach in protocol
"If the normal procedures were not followed, then that puts the person who wasn't following it in some kind of legal jeopardy," Kaplan said.
Hollywood productions have adhered to strict safety measures for stunt work for decades. The Industry-Wide Labor-Management Safety Committee has written and distributed safety bulletins on best practices for television and movie productions. Many of these guidelines were created after the on-set shootings of Jon-Erik Hexum in 1984 and Brandon Lee in 1993. Hexum accidentally shot himself while playing with a prop revolver loaded with blank rounds and Lee was fatally struck after a bullet became lodged in the gun barrel and was discharged by blank rounds.
"The procedure is long established safety protocols that have been in effect for decades in the film industry and it's very simple," Clay Van Sickle, an armorer with nearly 20 years of experience, told MSNBC Thursday.
"The armorer is the ultimate responsibility for the weapons on the set," he said, explaining that it is their job to ensure the weapon is "cold" and to show it the cast and other crew members.
"There's at least three, and often many more, checks of any weapon that comes on a set, whether it's going hot with blanks or whether it's cold," Van Sickle said.
He said scripted shows shouldn't have live ammo "at all." Van Sickle has worked on reality programs like "Mythbusters" and "Topshot" as well as dozens of scripted programs. He said there are limited circumstances where live ammo is used on set and it is usually reserved for special effects shots.
"But on a scripted show like this, live ammo should never, ever be on set and it's very clear that it was," he said.
There were also reports that the gun that killed Hutchins was used by crew members for live-ammunition target practice. Local authorities have not confirmed this detail but told reporters Wednesday that they believe they found the lead projectile that killed Hutchins and injured director Joel Souza.
"I frankly think that if you have a movie set where you've got live ammunition that is intermingled with dummy ammunition and intermingled with blanks, that's the kind of activity that rises to the level of gross negligence, and I do believe that someone, ultimately, is going to be charged with at least criminal negligence in this case," Jeff Harris, a trial attorney, said on CNBC's "The News with Shepard Smith" Wednesday.
Assistant director Halls admitted to investigators he should have inspected all the rounds in the handgun before last Thursday's shooting, the warrant said.
Halls previously was fired from the set of "Freedom's Path" in 2019 after a crew member incurred a minor and temporary injury when a gun unexpectedly discharged, a producer on the project told NBC News.
Gutierrez Reed, too, reportedly had a history of not adhering to safety measures. The Wrap reported that the young armorer was the subject of numerous complaints on her previous film just two months earlier after she discharged weapons without warning.
"Ultimately, it's the armorer and the assistant direct that have to atone for this," said Kevin Williams, the prop department supervisor at the UCLA School of Theater, Film and Television. "There were obvious breaches in protocol."
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