There are still many unanswered questions about what legal repercussions — if any — will follow an investigation into the accidental death of cinematographer Halyna Hutchins on the New Mexico set of the film “Rust.”
Hutchins, the film’s director of photography, died after actor Alec Baldwin, who also serves as a producer on the film, fired a prop gun. Director Joel Souza was also injured.
And while film-set injuries are not uncommon, there is little precedent for gun-related injuries and deaths. No charges have been filed, officials said Friday, and the investigation is ongoing.
Given the unprecedented nature of the incident, experts who spoke with NBC News say legal proceedings and the fate of “Rust” itself remain uncertain. Here’s what we know, and what some experts say could happen next.
How common are film-set injuries?
It comes down to protocol.
“There’s no way somebody gets injured unless someone violates the firearm safety guidelines or if there’s a problem with the firearm,” said Jeffrey Harris, an attorney in Atlanta who has had cases tied to Georgia’s bustling film industry.
Harris said gun-related injury claims on set are rare, which may speak to how careful productions are about firearms, but he’s also surprised there aren’t more accidents.
“You have a bunch of people on a set who may not know everything or what people are doing, and you put them together doing dangerous things, blowing things up, starting fires, with people working long hours,” he added. “It surprises me that more of them aren’t hurt more often.”
Harris was involved in lawsuits for two high-profile fatalities on set, representing the families of Sarah Jones, an assistant camera operator killed by a train in 2014 while filming the Gregg Allman biopic “Midnight Rider,” and of John Bernecker, a stuntman who fell to his death on the set of AMC’s “The Walking Dead” in 2017.
“Most movie sets, even if they’re not doing a great job following all the policies and procedures, are at least doing something,” he added, and “you have a prop master, a stunt coordinator and multiple layers of oversight.”
In 2016, The Associated Press found that since 1990, at least 43 people died while on sets in the U.S. and more than 150 were left with life-altering injuries. But there were also several instances in which major accidents weren’t reflected in investigation records or did not appear in an Occupational Safety and Health Administration database of the most serious set accidents, according to The Associated Press.
Harris said he expects OSHA, the federal agency that inspects and regulates workplaces, to investigate the “Rust” film set to determine if there were workplace safety violations.
VIP StarNetwork, a company that provides health and safety services to film and TV production, said in a statement that the “Rust" production had reached out to them to have them potentially run health and safety on their set.
But, according to VIP StarNetwork CEO Johonniuss Chemweno, the company was “unable to make a deal work based on budgetary constraints.”
“The film industry back at the early onset of the COVID-19 pandemic created its ‘COVID-19 playbook’ based on strict guidelines and protocols,” Chemweno said in a statement. “In response to current protocols, productions have been able [to] circumvent corners, cost and other important metrics.”
Before the deadly incident, several crew members walked off the set over safety concerns, including multiple previous misfires of the prop gun, a source familiar with the matter told NBC News.
A spokesperson for Rust Movies Productions, LLC, told NBC News that the company was “not made aware of any official complaints concerning weapon or prop safety on set.”
“The safety of our cast and crew is the top priority of Rust Productions and everyone associated with the company,” the spokesperson said in a statement. “Though we were not made aware of any official complaints concerning weapon or prop safety on set, we will be conducting an internal review of our procedures while production is shut down. We will continue to cooperate with the Santa Fe authorities in their investigation and offer mental health services to the cast and crew during this tragic time.”
Will criminal charges be filed?
Legal experts with experience in film industry accidents say a full accounting is necessary to determine if the cause was negligence or if the gun malfunctioned.
Laurie Levenson, a Loyola Law School professor in Los Angeles, said it’s still too early to determine if there will be criminal liability for what happened on the set of “Rust.”
“The accident needs to be fully investigated and all the witnesses need to be interviewed,” Levenson said. “The key issue is why did the accident happen and what errors contributed to it?”
It’s a “high standard” for pursuing criminal negligence like a manslaughter charge, Harris said, and would require people who handled the firearm or were responsible for it to have “ignored all the consequences of their actions.”
Richard Charnley, a veteran entertainment industry attorney in Los Angeles who has focused on workers’ compensation, said accidents occur that may breach industry wide safety guidelines, but they don’t typically result in criminal prosecutions.
“Midnight Rider” was an outlier, Charnley said, because it involved members of production who did not have permission to shoot on tracks in Georgia where a train collided unexpectedly, killing Jones, 27.
The movie’s director, Randall Miller, pleaded guilty to involuntary manslaughter in connection with her death and served half of a two-year sentence. OSHA fined the production company $74,900 for “one willful and one serious safety violation.”
While a wrongful death or negligence lawsuit might seem like obvious recourse for people injured on set or for families of loved ones killed, employees who are harmed by other employees fall under workers’ compensation laws, which bar most workers from suing. There are exceptions, such as if the person injured is an independent contractor or a third-party non-employee is blamed for the mishap.
In addition, workers who are legally allowed to sue might face their own difficulties with securing witnesses or they may wind up blacklisted within the industry.
Such wrongful death lawsuits can also be difficult to win: The mother of Bernecker, who died after plunging 21 feet onto a cement floor during a stunt on “The Walking Dead” set, sued AMC Networks and others. A jury in 2019 initially awarded more than $8 million, while finding that parent company AMC Networks was not liable, but a court overturned the decision on appeal in March.
The appeals court ruled that Bernecker was an employee of the production company, not an independent contractor, and the claim for damages should have come under workers’ compensation.
The lack of legal power that crew members have on set spurred an industry-wide movement to fight for better working conditions.
What’s been the industry response, so far?
This latest tragedy has prompted Hollywood advocacy groups and worker collectives, such as the International Alliance of Theatrical State Employees, to once again call for better safety on sets.
The production company behind the film initially said that the prop gun fired “blanks,” according to a statement Thursday. The sheriff’s office said it is still investigating “what type of projectile was discharged.”
Local 44, a Los Angeles-based chapter of the alliance representing set designers, prop managers and other craft persons, alleged that the prop gun contained a live round. In an email to Local 44 members, Secretary-Treasurer Anthony Pawluc described the incident as an “accidental weapons discharge.”
In the same email first obtained by IndieWire, the union also said that the set’s art department — which managed set design and props — was not staffed by Local 44 members.
“A single live round was accidentally fired on set by the principal actor, hitting both the Director of Photography, Local 600 member Halyna Hutchins, and Director Joel Souza,” Pawluc wrote in the email. “Local 44 has confirmed that the Props, Set Decoration, Special Effects and Construction Departments were staffed by New Mexico crew members. There were no Local 44 members on the call sheet.”
The incident follows increased scrutiny of the film industry as crew members nationwide nearly went on strike in a call for better working conditions.
IATSE, which represents about 60,000 camera technicians, makeup artists, costume designers and other crew, avoided what would have been the industry’s biggest walkout since World War II last week by reaching a tentative deal with the Alliance of Motion and Television Producers, which represents major Hollywood production companies.
The group issued a statement calling for a “culture of safety” on sets.
“Our entire alliance mourns this unspeakable loss with Halyna’s family, friends, and the Rust crew,” IATSE said Friday. “Creating a culture of safety requires relentless vigilance from every one of us, day in and day out.”
Some industry workers are advocating for an end to using guns on set entirely, in favor of computer-generated effects.
Craig Zobel, who directed the recent miniseries “Mare of Easttown,” tweeted, “There’s no reason to have guns loaded with blanks or anything on set anymore,” adding that prop guns should be “fully outlawed.”
“There’s computers now. The gunshots on 'Mare of Easttown' are all digital,” he continued. “You can probably tell, but who cares? It’s an unnecessary risk.”
“Bingo Hell” director Gigi Saul Guerrero noted that Baldwin has been the “face to this tragic story,” but questioned the set’s safety procedures.
“For those who don’t know, any prop weapon on set goes through strict protocol before it lands on the actor’s hands,” Guerrero said. “Why aren’t we talking about the failed procedure here!?”
As details emerge about the case, a petition to ban real firearms from film productions is steadily gaining support.
The Change.org petition, which had more than 4,300 signatures as of Friday, proposes “Halyna’s Law,” which will outlaw the use of real guns on set. It also demands that Baldwin use his power and influence to garner support for the proposed measure in Hollywood.
“We need to make sure this never happens again. There is no excuse for something like this to happen in the 21st century,” the petition’s description said. “Change needs to happen before additional lives are lost.”
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