Alec Baldwin Disputes New Mexico Prosecutors’ Addition of Gun Enhancement Charge

Alec Baldwin is arguing that New Mexico prosecutors are unconstitutionally charging him with violating a statute that didn’t exist at the time of the Rust shooting.

The actor and producer of the low-budget Western faces up to six-and-a-half years in prison under a recently-amended firearm enhancement statute. But that enhancement was enacted seven months after the fatal shooting. The change lowered the standards to apply the added penalty and increased potential prison time from three to five years.

In a motion to dismiss the charge filed on Friday, Baldwin’s lawyers say that the prosecution committed an “elementary legal error.”

“Application of the current version of the statute would be unconstitutionally retroactive, and the government has no legitimate basis to charge Mr. Baldwin under the version of the statute that existed at the time of the accident,” writes Luke Nikas, representing Baldwin.

Mary Carmack-Altwies, the district attorney who serves Santa Fe County, charged Baldwin and armorer Hannah Gutierrez-Reed in January with two counts each of involuntary manslaughter in the death of cinematographer Halyna Hutchins. While the charges carry a maximum sentence of 18 months in prison, prosecutors included a firearm enhancement charge that carries an additional five years.

At the time of the shooting, the statute in question applied only if it’s found that a firearm was “brandished,” meaning that the defendant used the weapon with the “intent to intimidate or injure a person.” It was amended in May, after the incident, to replace the brandishing requirement with a lower standard that a gun was simply discharged.

Baldwin’s lawyers say the inclusion of the amended firearm enhancement violates the U.S. and New Mexico constitutions. They argue prosecutors are barred from charging their client with a statute that retroactively “increases punishment for existing offenses.”

If the statute weren’t amended, Baldwin says there would be no basis to charge him with the version of the enhancement that existed at the time of the shooting. While he is accused of acting with reckless disregard of safety, he stresses that prosecutors don’t argue he acted with the intent to intimidate or injure others.

Baldwin was “practicing drawing and pointing the weapon for the scene with guidance and instruction from Halyna Hutchins and Joel Souza,” according to prosecutors’ statement of probable cause.

“Those allegations make clear that the tragic death of Ms. Hutchins was an accident that occurred while Mr. Baldwin was practicing a scene and that he did not act with the intent to intimidate or injure another person,” reads the motion.

Leading up to Baldwin’s first appearance in the case, which is set for Feb. 24, the actor’s lawyers have also moved to a disqualify a prosecutor who was brought onto the prosecution to assist. They argue that she’s not constitutionally allowed to serve as a state legislator and special prosecutor.

“Doing so vests two core powers of different branches — legislating and prosecuting — in the same person and is thus barred by the plain language of Article III of the New Mexico Constitution,” Nikas writes in the filing.

In the new motion filed on Friday, Baldwin takes issue with statements from Carmack-Altwies and Reeb in TV interviews that he faces several years in prison. He says the statements could potentially bias a jury by “heightening public condemnation of the accused for no legitimate purpose whatsoever given that the statements rest solely on the government’s own legal error.”

“Another day, another motion from Alec Baldwin and his attorneys in an attempt to distract from the gross negligence and complete disregard for safety on the ‘Rust’ film set that led to Halyna Hutchins’ death,” said the district attorney’s office in a statement. “In accordance with good legal practice, the District Attorney and the special prosecutor will review all motions–even those given to the media before being served to the DA. However, the DA’s and the special prosecutor’s focus will always remain on ensuring that justice is served and that everyone–even celebrities with fancy attorneys–is held accountable under the law. ”

Feb. 10, 2:02 p.m. This story has been updated with a statement from the district attorney’s office to The Hollywood Reporter.