Should Alec Baldwin have been charged with involuntary manslaughter in the shooting death of the cinematographer on the movie set of "Rust"?
To answer that question, you need to know what he knew or should have known at the moment he pulled that trigger.
This is what we know. He pulled the trigger. He did the act that caused death. Act and causation. Those two requirements are easy. It's mens rea — state of mind — that determines the difference between murder, manslaughter and an unfortunate accident.
First-degree murder is reserved for those who pull the trigger with the intent to kill. Premeditated and deliberate, intent at its worst. Capital murder.
Second-degree is for the crazed lunatic. Extreme indifference to the value of human life. Reckless disregard in the extreme. Second degree.
Voluntary manslaughter is the heat of passion. Provocation. The spurned lover. The bar fight that goes south.
Involuntary manslaughter is Russian roulette. You should have known. The loaded gun.
Where does Alec Baldwin fit? What should he have known?
Obviously, he shouldn't be treated more strictly — or more leniently — because he is a celebrity. The standard isn't different for a reasonable celebrity.
The question is whether a reasonable person in Baldwin's position would have pulled the trigger — or would he have checked first to make sure the gun wasn't loaded?
If he would have checked, if he was grossly negligent in not checking, then it's fair to charge him.
If it wasn't his job, if it wasn't up to him to check, if it wasn't reasonable to expect him to be the one to check, then it isn't fair to punish him for the awful result.
Who decides that?
In the first instance, of course, the prosecutor has to look at Baldwin's role not only as an actor but also as a producer and answer the question of just what his responsibility was. Is everyone on a set responsible for the handling of a weapon?
Maybe guns should always be assumed to be loaded and ready to be fired at all times, but if that isn't the rule, and if everyone isn't bound by it and it isn't enforced against everyone, it certainly cannot be enforced retroactively, after the fact, however justified. As for producers, there are producers who are actually responsible for things and producers who have big titles.
There have been reports of safety violations on this particular set. Was Baldwin, as a producer, in a position where he knew or should have known about safety problems? Was he aware of issues relating in particular to gun safety? Did he take steps to deal with these problems? Should he have? Did others?
All of these questions have to be addressed before anyone can say whether it is right to charge Baldwin in the first instance, and all of these issues will have to be addressed and decided by a jury before it can conclude whether Baldwin bears any responsibility for the tragedy that followed.
It's clear that whatever else happens, sets should be safer as a result of what Baldwin did. But deterrence is only one of the purposes of punishment and important as it is, deterring future accidents is not enough of a reason to make an example of Alec Baldwin.
If he deserves to be punished, and that is a big if, it will only be if a jury finds that he clearly should have known that the gun in his hands was just too dangerous for him to fire. The question is, should he have known that?
Susan Estrich is a politician, professor, lawyer and writer. Whether on the pages of newspapers such as The New York Times, the Los Angeles Times and The Washington Post or as a television commentator on countless news programs on CNN, Fox News, NBC, ABC, CBS and NBC, she has tackled legal matters, women's concerns, national politics and social issues. Read Susan Estrich's Reports — More Here.