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In a motion, Baldwin's lawyers asked Judge Mary Marlowe Sommer to throw out the enhancement as a violation of the constitution's "ex post facto" clause, reports Variety.
"The prosecutors committed a basic legal error by charging Mr Baldwin under a version of the firearm-enhancement statute that did not exist on the date of the accident," wrote Baldwin's legal team, led by Luke Nikas, adding that under the state and federal constitutions, "that version of the statute could not apply to conduct that occurred before it was enacted."
Baldwin and 'Rust' armourer Hannah Gutierrez Reed were charged on January 31 with involuntary manslaughter in the death of Halyna Hutchins, the cinematographer who was shot and killed on set in October 2021.
The charge carries a maximum sentence of 18 months in prison, reports Variety.
First Judicial District Attorney Mary Carmack-Altwies and special prosecutor Andrea Reeb also charged a gun enhancement that carries an additional sentence of five years.
But that version of the law did not become effective until May 2022, seven months after Hutchins' death. The version of the law that was in effect at the time of the shooting allowed only a three-year enhancement for "brandishing" a firearm in the course of a felony.
Read: Alec Baldwin, ‘Rust’ producers sued by parents, sister of Halyna Hutchins
Baldwin's lawyers argued that that version of the law does not apply either because it requires "intent to intimidate or injure a person."
"The government's statement of probable cause contains no allegation that Mr. Baldwin acted with intent to intimidate or injure a person,' and its description of the alleged conduct makes it clear that the tragic death of cinematographer Halyna Hutchins was an accident," Baldwin's lawyers wrote.
When asked about the applicability of the gun enhancement earlier this week, a D.A. spokeswoman said the office was looking into it.
The District Attorney and special prosecutor are actively reviewing all applicable laws to ensure they have the strongest case to secure justice for Halyna Hutchins," said the spokeswoman, Heather Brewer.
Baldwin's lawyers asked the judge to address the issue "as soon as possible," arguing that the D.A.'s public statements threaten to taint the jury pool and prejudice the case. But a judicial resolution may have to wait until a preliminary hearing, when prosecutors will be required to show that there is enough evidence to take the case to trial.
Baldwin has a right to a preliminary hearing within 60 days of his first appearance, which is set for February 24.
Gutierrez Reed was also charged with the same enhancement. Her attorney, Jason Bowles, said earlier this week that he also intended to file a motion to throw out the enhancement.
"They have clearly charged an enhancement that is barred by the constitution and ex post facto law," Bowles said via email.
Bowles filed his motion to throw out the enhancement on Friday afternoon.
In addition to invoking the "ex post facto" issue, he also argued that Gutierrez Reed did not "brandish" the gun because it was not in her possession when it was fired. The statutory definition of "brandish" includes a requirement that the gun is displayed to another person "while the firearm is present on the person of the offending party."
Bowles also noted that Carmack-Altwies and Reeb have acknowledged that the shooting was an accident, and that therefore the statutory requirement of "intent" is not satisfied.
"There are no set of facts the government could allege at a prelim or any other hearing that would support enhancing Hannah's sentence under the version of NMSA section 31-18-16 in effect in 2021, Bowles wrote.
On Tuesday, Baldwin's lawyers also filed a motion to disqualify Reeb, arguing that she cannot serve as a special prosecutor because she is also a member of the state House of Representatives.
Gov. Michelle Lujan Grisham has asked the Legislature to approve $317,700 to pay for the "Rust" prosecution, which includes the cost of Reeb's salary. Reeb has said she will recuse herself from any votes that present a conflict of interest.
In a response to Baldwin's motion to dismiss the enhancement on Friday afternoon, the D.A.'s office said that Baldwin's "fancy attorneys" are trying to distract from the core issue. The office did not address the substance of the motion, other than to reiterate that the issue will be reviewed.
"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," Brewer said.
"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."
(Los Angeles, IANS)