Alec Baldwin shooting: What we know and what we don’t

Cinematographer Halyna Hutchins was shot and unfairly lost her life. Director Joel Souza is recovering from a gunshot wound to his shoulder. And actor Alec Baldwin will for the rest of his life suffer the pain of pulling the trigger on what he thought was a "cold" gun, and mistakenly ending someone else's life. In the aftermath of the October 21 shooting on the set of filming "Rust," these are the facts we do know. But there is a lot we don't know, and it will take months before we have the answers we want.

On-set injuries are common. Actors and their stunt doubles occasionally get hurt. Deaths, though rare, have also occurred. Hutchins's was not the first on-set shooting death. The case of Brandon Lee comes to mind. Lee, the son of the late martial artist Bruce Lee, was fatally shot by what was also supposed to be a cold gun while on the set of "The Crow." That case has an uncanny resemblance to the current one, and it begs the question why such a tragedy happened again.

Although it was unclear at first, officials have confirmed that the projectile fired by Baldwin was in fact live ammunition. The bullet was fired from a Colt revolver after being declared safe by Assistant Director Dave Halls. We now know that Halls did not ensure that the round chambered was in-fact a "dummy" round. This oversight will be one of the key issues in the case.

Another key issue involves Hannah Gutierrez-Reed, the armorer in charge of the use and safety of the firearms on the set. She told investigators that no live ammunition was present. We now know this to be incorrect. Nearly 500 bullets were confiscated by police -- including several live rounds which were not supposed to be there. How these rounds escaped Gutierrez-Reed's attention is a question that must be answered.

Of course, lawyers and commentators are expecting a wrongful death case to be forthcoming. Brandon Lee's mother pursued the same course of action after his untimely death in 1993. Individual defendants might include Baldwin, Halls and Gutierrez-Reed. A more likely case would see Hutchins's survivors sue the production company for wrongful death. In essence, it would be a negligence case against the "Rust" production company -- specifically for negligent hiring or supervision. This cause of action, spelled out in Civil Jury Instruction 426, requires a plaintiff to prove:

1. The production company hired Halls and Gutierrez-Reed;

2. Halls and Gutierrez-Reed were unfit to perform the work for which they were hired;

3. The production company knew or should have known they were unfit and this unfitness or incompetence created a particular risk of harm to others;

4. This unfitness harmed the plaintiff; and

5. The production company's negligent in hiring/supervising Halls and Gutierrez-Reed was a substantial factor in causing the plaintiff's harm.

A negligent-supervision claim depends, in part, on a showing that the risk of harm was reasonably foreseeable. Here, CNN reported that Halls previously was responsible for a firearms mishap on a different set. This could support the argument that the "Rust" production company knew or should have known that Halls was unfit to be the individual on this set declaring the gun to be safe. It was this representation Baldwin relied upon when he pulled the trigger.

There is scant information about Gutierrez-Reed. We do know that she's 24 years old and only recently attained the status of on-set armorer. In one interview, she exclaimed that she was scared to be the one responsible for determining whether bullets loaded into firearms were real or fake. The Wrap reported that actor Nicholas Cage stormed off a previous set after Gutierrez-Reed accidentally discharged a firearm near him. Other reports allege that she displayed poor firearms safety in the past. If true, these facts could be damaging to the production company. They could support the argument that the company negligently hired or retained both Halls and Gutierrez-Reed.

Will Baldwin face criminal charges? The answer is uncertain. Santa Fe District Attorney Mary Carmack-Altwies said she has not determined whether charges are warranted. By analogy, in California, Penal Code Section 246.3 proscribes the negligent discharge of a firearm. Did Baldwin willfully discharge a firearm? Yes. He pointed the gun straight at Hutchins, who was filming the scene intending to capture the suspense, from the audience's point of view, of facing a revolver head-on. Baldwin then pulled the trigger, a bullet was expelled, and Hutchins was shot and killed.

But was Baldwin grossly negligent? Prosecutors may argue that the very act of pointing a gun towards someone is grossly negligent. Anyone experienced with firearms knows that firearms are to be treated as loaded at all times. It is the number one rule of firearm safety. Even if the gun was declared to be safe, Baldwin should have known otherwise. Baldwin will counter that as an actor inexperienced with -- and even an opponent of -- firearm use -- he had no reason to disbelieve Halls, who declared the gun to be safe for the scene. Presently, it is unclear whether Baldwin or any other individual will face criminal charges for the shooting. We also do not know whether the worker's compensation exclusivity rule will apply on the civil side. Time will answer all of these important questions.

The tragic killing of Halyna Hutchins occurred in New Mexico, and that state's tort and criminal laws should ultimately apply. The above discussion uses California law by analogy to help try and answer the questions we all have. Suffice to say, Hutchins' untimely death should not have happened. Live ammunition should not have been on the set, and the Colt revolver should have been double-checked to ensure that it was in fact a cold gun. Production companies must do better to protect all individuals on a film set so that a tragedy like this never occurs again. 