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What Happened to the Gun From the Rust Shooting?

Photo: Santa Fe County Sheriff’s Office

A major bombshell dropped during a recent proceeding in the New Mexico manslaughter case against Alec Baldwin over the Rust shooting tragedy. On Thursday, March 9, Baldwin’s attorney claimed the gun at the center of the case had been destroyed.

“The court I don’t think is aware at this point, but I think I should tell the court that the firearm in this case — that’s a great subject of it — was destroyed by the state,” Alex Spiro told Judge Mary Marlowe Sommer matter-of-factly during the livestreamed proceeding. “That’s obviously an issue, and we’re going to have to see that firearm, or what’s left of it.” Indeed, Spiro’s claim could have dramatic implications for the prosecutors’ case against Baldwin, who faces an involuntary-manslaughter charge over the on-set shooting incident that killed cinematographer Halyna Hutchins. Baldwin has insisted that he was told the prop gun was “cold,” that is, not loaded with live rounds. He has also maintained that he did not pull the trigger. An FBI analysis of the weapon asserted, however, that the gun could not have gone off without the trigger being pulled.

The alleged destruction of the literal smoking gun is a huge deal for both the prosecution and the defense. Prosecutors would ostensibly use an analysis of the weapon to show Baldwin had pulled the trigger, indicating negligent criminal behavior. Defense attorneys would almost certainly have their own expert or experts examine the gun and would likely argue that the official FBI analysis was questionable or false. If the gun is MIA, Baldwin’s defense can’t do that. Prosecutors handling the case have pushed back on Spiro’s claim. They say that they do have the gun and that it can be examined.

“The gun Alec Baldwin used in the shooting that killed Halyna Hutchins has not been destroyed by the state,” prosecutors noted in a statement after the hearing. “The gun is in evidence and is available for the defense to review.” They added, “The defense’s unexpected statement in the status hearing today that the gun had been destroyed by the state may be a reference to a statement in the FBI’s July 2022 firearms testing report that said damage was done to internal components of the gun during the FBI’s functionality testing. However, the gun still exists and can be used as evidence.” While the exact status of this weapon remains a matter of debate, Vulture asked several longtime defense attorneys our biggest questions about what it could mean for the case.

How could a damaged or destroyed gun impact Baldwin’s defense?

James Kousouros, a longtime defense attorney who has counted the rapper Casanova among his many clients, said questions about why the gun fired and whether it was defective are at issue throughout the case. The “centerpiece” of Baldwin’s defense, he said, may hinge on the firing and how exactly it happened, making an examination of the gun very important.

“The defense has the right, especially in circumstances such as this, to test the gun because the operability of the gun — or any defect in the gun — is presumably part of Mr. Baldwin’s defense,” Kousouros said. “If the gun is no longer in a condition that can be tested by the defense or a defense expert in order to ascertain whether there was any defect or whether Mr. Baldwin’s explanation for how the gun fired was plausible, I think it does affect the defense. If this is all true, the defense is not given a meaningful opportunity to test it and back up their defense.”  

Could prosecutors get into hot water if the gun has been damaged or destroyed?

Several scenarios could unfold depending on what happened to the gun, similar to any other evidence that wound up damaged or destroyed, said Neama Rahmani, a former federal prosecutor and the president of West Coast Trial Lawyers. “The first possibility is the evidence was intentionally destroyed. They knew they had to preserve it, but they destroyed it. The court could dismiss the indictment outright. I mean, that’s obviously very unlikely; they would have to be idiots and criminals to do something like that,” Rahmani said. “The other possibility is that it was destroyed negligently. Loosely, the most common remedy for negligent destruction of evidence is an adverse jury instruction. And it says the following: ‘You the jurors, it’s been shown that the government had a duty to maintain the gun and failed to do so you; the jurors can infer that the evidence would be helpful to the defense and that it would be harmful to the prosecution.’ Ultimately, he said, prosecutors are responsible for making sure the gun was preserved.

So did the prosecution mess up with its handling of the gun?

Ron Kuby, a veteran criminal defense lawyer with a focus on civil rights, made an analogy to how prosecutors would have to address a situation with the police discarding a blood sample in a case. Ultimately, the prosecution has to prove it made an effort to prevent something like that from happening. “A fundamental principle of law is that the prosecution has the burden of exercising proper care to ensure that evidence is not destroyed, and that burden is particularly heavy before the defense has had the opportunity to examine that evidence,” he said. In Baldwin’s case, the FBI had the evidence in question. “Is giving the evidence to the FBI to examine reasonable? It is, but the prosecution is responsible for the FBI carelessness. They’re in privity with each other, just as if they had sent it to any other lab. So if the gun disappeared — if it got tossed in with, you know, a bunch of metal fragments and rendered down into slag — the prosecution would be in serious trouble, especially since the defense has yet to concede, in a legally acceptable way, that Baldwin pulled the trigger, leaving open the possibility that the gun malfunctioned,” Kuby explained.

Kuby added that he would be astonished if the gun had been destroyed outright. The question is rather how much damage it suffered. “Is that damage serious enough to prevent a defense expert from examining the firearm? The answer is probably not. The firearm in question, it’s not that complicated a device. It’s a small number of moving pieces, and those are fairly simple. I don’t know what they damaged — and it could be that the damage gives rise to an explanation that Baldwin didn’t actually pull the trigger,” he said. “Because if they damaged the trigger mechanism, it would then be impossible for a defense expert to tell whether it could have gone off without the trigger being pulled.”

Interviews have been edited lightly for length and clarity. 

What Happened to the Gun From the Rust Shooting?