An Interview with Mark Seiden
Interview by Gila Hayes
How many times have you heard or read, “If it is a ‘good shoot,’ how could it matter if your gun was customized or whether you used home-loaded ammunition?” This assertion is usually followed by the challenge, “If you think I’m wrong, show me the cases.”
Retired attorney Mark Seiden does just that. He knows from hard experience how difficult it is to keep the focus on the criminal aggressor who initiated an attack that ended in gunfire. Seiden and his former law partner, Roy Black and expert witness Massad Ayoob fought hard and won an acquittal for Miami, FL police officer Luis Alvarez thirty years ago after a justifiable shooting with a modified revolver.
While the riots that followed the shooting and the racial elements of the trial linger in memory, most have forgotten the home garage gunsmithing that fueled the prosecution’s claim of manslaughter by gross reckless culpable negligence.
As Santayana said, “Those who cannot remember the past are condemned to repeat it,” so when the opportunity arose to ask Seiden questions about gun modifications, we had many topics to explore. Let’s switch now to Q&A to learn from Seiden’s own words.
eJournal: With so much attention focused on when deadly force is justified, it is easy to ignore peripheral issues that let a prosecutor or plaintiff’s attorney distort what happened through arguments that have little or nothing to do with the necessity of self defense. I’m hoping to learn from some of the cases you defended and apply those lessons so readers can avoid having to go through trials like some of your clients. With that in mind, thank you for speaking to us!
Seiden: To get started, there are three different kinds of shootings that we should discuss. A justifiable shooting is an intentional shooting where the danger to the shooter is absolutely clear. Maybe the shooter is sitting in a café enjoying a cup of coffee and somebody in a suicide vest comes running in with an AK47, shouting “Allah Akbar,” and the armed citizen puts him down. That’s one type of shooting.
Another type of shooting is an accidental shooting and the third type of shooting is a politically sensitive shooting, like the George Zimmerman case. Under Florida’s Stand Your Ground law, it was pretty clear that Zimmerman was justified in his use of deadly force, but because it was politically sensitive, racially charged, and there were careers at stake, the prosecutors went after him with everything they could to try to prove that he committed manslaughter at the least, and murder at the most.
eJournal: Political prosecutions are nothing new. One of your landmark cases was the defense of police officer Luis Alvarez where the accusations hinged on what seemed like pretty minor gunsmithing. How can an armed citizen avoid getting swept up in something like that?
Seiden: Here is the background: On December 28 of 1982, Luis Alvarez was a police officer in the city of Miami. He was assigned as FTO (field training officer) to a young recruit whom previous FTOs said had a fear of black neighborhoods. Alvarez wanted to see whether or not this was correct and so they spent a lot of time in black neighborhoods.
Alvarez decided to show this recruit how to do a premises check, so they stopped at a video arcade. He was explaining what licenses should be publicly posted, so he brought the recruit into the game room and showed him the licenses. He then saw a young man, Neville Johnson, Jr., bent over a Donkey Kong video game.
It is December and Johnson is wearing a sweater. Alvarez sees what he believes to be the grip of a handgun in the cross draw position on Johnson’s left side. This is back in the days before shall-issue statewide carry permits and it was virtually impossible to get a carry permit in Dade County. There may have been only 200 or 250 carry permits in a county of well over a million people, so he assumes the gun is being illegally carried. He walks over, puts his hand on what he believes to be the weapon and says, “What’s this?” He feels it and knows it is a weapon.
Johnson says, “It’s a gun.” Alvarez tries to lift the sweater up to get the gun, but the sweater slips. Alvarez has drawn his revolver, he tells his partner to retrieve the pistol. At that point Johnson pivots toward him, Alvarez sees his right shoulder and upper arm move toward the weapon and, in fear for his life, he fires his Smith & Wesson Model 64 one time. The bullet hits Johnson in the head and traverses the sagittal sinus. He goes crashing to the floor and is dead before he hits the ground.
The weapon is retrieved, secured and the crowd starts getting nasty. Alvarez calls for assistance. A riot develops. The scene is pretty well trounced and Alvarez, his partner and one of the homicide detectives have to be rescued by the SWAT team because of the riot that is now in full force outside. That was the scenario of the shooting.
eJournal: Do you ever wonder whether Alvarez would have been prosecuted had the riots not started so immediately?
Seiden: It is difficult to say! If the riots hadn’t happened, I think the likelihood of him being charged would have been far less. It was clearly a political decision.
eJournal: The State charged Alvarez with manslaughter?
Seiden: He’d had a home-garage gunsmith modify his revolver by removing a coil and a half of the rebound slide spring and polishing the rebound slide. The prosecution’s theory was that Alvarez fired unintentionally because of the lightened trigger pull and he committed manslaughter by gross reckless culpable negligence by modifying his weapon.
When I was a law enforcement officer, the first service weapon I had was a K-frame revolver. The training sergeant in the firearms unit took a coil and a half off the rebound slide spring and polished the rebound slide. It didn’t really lighten the trigger pull; it just made it smoother.
eJournal: But Alvarez’s revolver had the very same modifications. How does that end up in a manslaughter charge?
Seiden: It happened because we’d had a spate of three police shootings around 1982. It used to be that the prosecutor would review the shooting and issue a letter that there was no criminal action on the part of the officer and that would be the end of it.
Janet Reno was then the state attorney. Her office had been accused by the Department of Justice of being racially insensitive, so she sent these three police shootings to the grand jury rather than ruling on the shootings herself. One officer was indicted, went to trial and was acquitted; the second officer was convicted; Alvarez was acquitted.
eJournal: What made the difference?
Seiden: There are a lot of variables whether a person is prosecuted or not. What is the political mood of the community? What is the political sensitivity of the chief prosecutor? Are they running for election? Have they been criticized for their conduct in other shooting cases? Are the newspapers pushing for an indictment? Once that train starts rolling, there is nothing that you can do to stop it. You just have to deal with it.
eJournal: Can we tie the lessons of 30 years ago to the kinds of guns and the options for home gunsmithing available today?
Seiden: I believe that a carry pistol should be as close to box stock as you can get it. The reason is that it eliminates an issue. The prosecutor is looking for some issue to hang their hat on in order to charge you or in order to make a point during trial. If you eliminate that rack for them to hang their hat on, that is one less issue that you have to deal with.
eJournal: What about changing parts to improve the feel of the trigger, keeping with parts from the original manufacturer, for example? Citing a very common brand of gun in wide use today, aren’t there variations to the factory Glock trigger you prefer? While not all our readers will use Glocks, it provides an example of what’s OK and what opens avenues of doubt a prosecutor can raise.
Seiden: I like the New York 1 spring; it increases the trigger pull weight. My own pistol [trigger] is a little over 7 pounds, which is clearly above the factory spec of 5.5 pounds, all Glock parts installed by a Glock certified armorer. I can’t see that ever being a problem in the courtroom.
Now, Glock tells you in the armorers’ manual that the minus connector is for competition only. If you put that minus connector in your carry weapon without a New York 1 spring, the trigger pull weight is well below the standard Glock specification for trigger pull. If you do that, you have just created a hat rack for the prosecutor to hang his or her hat on.
Glock approves the modification of the minus connector and the NY1 spring. Per page 53 of the 2015 Glock armorers manual, it increases the trigger pull from the standard, presuming the standard firing pin spring, from 4.3 to 6.5 pounds, which is a nominally 5.5 to a 6.3 to 8.3 pounds.
Also the same manual on the next page talks about the extended slide stop; I don’t see that as a problem. Of course, Glock sells the pistols with night sights, or you can put aftermarket night sights on Glocks. I don’t see that as a problem. Beyond that, I would leave it alone.
I speak of Glocks because it is probably the service weapon that I am most familiar with. Many departments now issue Glock pistols, but I doubt that there is a police department armorer out there that would approve of somebody modifying their pistol or doing anything to alter it from its factory stock condition with the exception of night sights. I don’t see a problem with sights at all.
eJournal: Is there a parallel standard for the 1911 owner? Colts, Kimbers or Springfields, to name only a few, are awash in aftermarket parts that definitely are not from the factory–extended thumb safeties, magazine funnels, and many more. Now what?
Seiden: You are creating an issue, even though in reality a mag well may not actually have much effect on the pistol. Nonetheless, they will argue that it was your intent to turn your side arm into a deadly, more efficient killing machine with an increased rate of firepower, as the prosecution’s expert argued in the Alvarez case. So why create the issue? It makes no sense! If it makes you feel good, do it, but don’t carry it.
eJournal: What about laser sights? Do you think that creates the issue for the prosecutor to attack?
Seiden: If it comes factory installed, as a factory option, I don’t think that would be a problem. I think that would be in the area of changing sights, which I don’t think is a problem.
eJournal: What if the custom modification is done for you by a reputable gunsmith?
Seiden: If you sent your weapon to the Smith & Wesson Performance Center for a service pistol action job, a carry modification not a competition modification, as long as it still meets factory specs, you are going to have less problems because it was done and approved by the factory than if you went to even a very well known, custom gunsmith. You can buy a Smith & Wesson Performance Center pistol that comes with the modifications already done, you just pay a little more money for it.
In the Alvarez case, even though the modifications were commonplace, and the grips made by Roger’s Holster Company were perfectly suitable and acceptable, the prosecutor did not have much else to go on because the decedent was armed, and Alvarez’s reaction was reasonable. So their theory was that it was manslaughter by culpable negligence because he modified the revolver and therefore it was more likely to discharge accidentally.
The prosecution had an expert witness who used to be a designer for Hi Standard come in and testify that the grips and the trigger job made it, and I am quoting, “A far more efficient and deadly killing machine with greater fire power.” I kid you not.
eJournal: How did you rebut that?
Seiden: We put the head of the technical services division at ATF who had examined the revolver on the stand. He said that the revolver’s trigger pull both single and double actions was within factory specifications, that was a common modification which many police officers did and that he, himself, had done that to his own service revolver.
One of the firearms examiners for the Metro Dade Police Department, who examined the weapon, said exactly the same thing. We put those two witnesses on to testify that it was within factory specifications. It was a common modification. We needed to defuse that issue. But if the revolver hadn’t been modified, it would not have been an issue.
Your carry gun should be as close to box stock as possible. It eliminates an issue. A prosecutor might make the argument, “Oh, you wanted a lighter trigger pull so you could fire more shots within a short period of time?” or, “The factory trigger pull was too heavy to prevent you from firing as many shots in a few seconds as you wanted. Did you want to turn this weapon into a more deadly, efficient killing machine? Isn’t that why you made the modifications?”
eJournal: If there is a counter argument, what might that be?
Seiden: You have to come back with counter arguments as we did in Alvarez that it is a standard modification, that it is within factory specifications, and there was no issue with the grips or the lock work of the revolver. But you want to avoid creating those issues.
eJournal: Armed citizens today, unfamiliar with that history, may see advertising for trigger kits, for example. They might think, “This must be OK. It came from a factory.” Do you think the manufacturer of trigger kits, for example, may end up on the witness stand, testifying why their replacement part “improves” a major gun manufacturer’s design?
Seiden: Perhaps. In the Alvarez case, Bill Rogers came to the stand to testify about his grips.
eJournal: Were you worried that the judge might not allow your experts to testify why those revolver modifications were acceptable?
Seiden: Yes! The judge decides what is admissible and what is inadmissible. The appellate court, if there is a conviction, reviews that and the appellate court can do several things. One: it can reverse the conviction, at which point the citizen would have to go through another very expensive trial, or the appellate court can say, “PCA,” which means “per curiam – affirmed” where they don’t even write an opinion. That means the conviction stands and cannot be reviewed by a higher court. Or, they can use the harmless error doctrine and say, “Yeah, OK, the judge should have let the evidence in, but the other evidence was so overwhelming that it would not have made a difference in the outcome of the trial, so we are affirming the conviction.”
eJournal: Are you stopped cold at that point? No further appeals?
Seiden: Depending upon the jurisdiction that you live in, there may be appeal to a higher appellate court, but the higher appellate court may exercise its discretion and not even want to hear your appeal. Besides, while this is happening, you are eating baloney and cheese sandwiches on stale bread and sleeping on a concrete bunk.
Why modify the weapon? In other words, if it is your IPSC pistol, and you have this and that modification made to it, then limit its use to IPSC matches. Your carry pistol should be pretty much box stock. When I was shooting IPSC, I was a law enforcement officer and I competed with my service pistol.
What happens is that people’s competitive urge gets the better of them and they think, “If I just drop in an XYZ trigger group then I will lower my pull by 3 ½ or 4 pounds and I’ll be able to shoot more accurately faster.” If it is only for the range or competition, go ahead, but don’t carry it.
eJournal: Armed citizens have to ask are we merely hobbyists, or do we own guns to prevent death from criminal attack?
Seiden: Hobby guns should be restricted to hobby shooting; self-defense guns should be carried as close to stock as possible. Suppose you like a smooth-faced trigger on your Glock 19 so you put in the trigger from your Glock 17? Would it make any difference in court? Hard to say, but if that is what you want, why not just buy a Gen 5 Glock that comes with a smooth-faced trigger right out of the box? If you don’t like the finger humps on the Glock, well, get a Gen 5.
eJournal: I am sure there are corollaries for guns from other manufacturers, and that most have a custom shop to keep the gun in factory spec.
Seiden: That depends whether the custom pistol is meant as a hobby gun or as a duty gun. I don’t advocate aftermarket trigger jobs performed by gunsmith in a carry gun, but those gunsmiths that do that usually have two trigger jobs – a competition trigger job or a carry trigger. When I was a law enforcement officer, when I went to the detective bureau, we could carry whatever we wanted. I carried a Government Model that was modified by the late Jim Hoag when he worked at Kings Gun Works many, many years ago. That was also the pistol I competed with. Would I do that today? No!
eJournal: Are you “older and wiser” or has America become more litigious?
Seiden: Both! We definitely have become more litigious. The Alvarez case taught me, “Don’t make it better. Leave it the way it is.”
eJournal: And you were smart enough to apply the lessons someone else learned so you didn’t have to suffer the same mistakes yourself. Now, what if the manufacturer creates a problem and gives a model of their gun an indiscreet name?
Seiden: Well, what would happen is this: if you are carrying a weapon that has something roll marked on it that sounds aggressive or sounds like you intend to use it in a battle or a combat situation, the prosecutor is going to hold that in front of a jury, photograph it, blow it up to 6 feet by 5 feet and say, “Look what the intent was in his mind. Look at this! It was not enough for him to have a standard pistol. He had to have one that was called Close Quarter Battle or Scorpion,” or things of that nature.
It is much better if it just says M&P, or 19 Gen 4, Model of 1911A1 or Government Model or something innocuous, instead of some hyperbole. If you put the plastic bit on the back of the Glock slide, with a skull and crossbones on it, that’s going to be blown up to six foot by five foot and shown to the jury, too.
eJournal: I’ve even seen cartoon characters engraved on pistol slides. I wonder if the frivolity could also be misrepresented to suggest the taking of life was not a serious matter?
Seiden: They don’t call lawyers sharks because of their ability to swim! A plaintiff’s lawyer who in essence is not fighting for justice but is fighting for his or her own fee, is going to pull out all the stops. They are going to pull out every dirty trick in the book to try to get a judgment against you so that they can put money in their pockets. That is the way personal injury [law] works.
In a criminal case, a prosecutor’s job is to obtain a conviction. Now, they are supposed to seek justice, but that gets blurred because egos are involved. Trials are a competitive sport. Each side wants to win. It is defined as an adversarial system of justice. Each party puts out evidence that is most favorable to their side and then the jury decides. So if you place yourself in a situation where you put a target on your back because you want to carry a fancy custom pistol with a three-pound trigger, you have got to be prepared to face the consequences. When people say, “If it is a good shoot, it will stand on its own merit,” they are wrong. Ask Luis Alvarez!
eJournal: In earlier conversations, you’ve indicated a preference to mirror law enforcement in your community when selecting firearms for defense. However, there are a lot of really decent concealable firearms that are probably never going to be approved for police use. How stringently should that ideal be applied?
Seiden: As long as it is a pistol made by a reputable manufacturer with factory ammunition and it is not modified, I don’t see a problem. That brings up something else: Don’t carry handloads!
eJournal: Can you explain why?
Seiden: Major ammunition manufacturers keep samples of ammunition lots. If a few years later, ammunition from a lot is used in a shooting, and it is very important to determine the range [distance between persons involved], the manufacturer can provide ammunition to the forensic, testing laboratory so that the range can be more accurately determined.
I don’t know that boutique ammunition manufacturers keep samples of the various lots of their ammunition, firstly, and secondly, the argument by the plaintiff’s lawyer or the prosecutor would be, “Well, standard ammunition, police ammunition was not good enough for this man. He had to have some kind of fancy ammunition, custom ammunition, that creates greater wounds and was more deadly.” See, you created another issue.
Pay attention to the name. You don’t want a plaintiff’s attorney to say, “He had to carry ammunition called ‘Thermonuclear Ammunition,’ because the standard stuff that our local police carry was not deadly enough for him.” That goes to show your intent; that you tried to create a more deadly, efficient killing machine by modifying the weapon, then purchasing ammunition that advertises itself as more deadly. Why create that issue?
If you buy ammunition from a major manufacturer today, Federal HST or Speer Gold Dot, you are not going to have much difficulty defending that. But if you carry ammunition made by some boutique manufacturer that advertises the deadly qualities and the wound channels produced by its loads, then you create another issue.
eJournal: Fortunately, there is no shortage of responsibly marketed ammunition choices from major manufacturers that are likely to still be in business if, some years down the line, ammunition from a particular lot ends up in a shooting. Still, I wonder how damaging not being able to come up with exemplar rounds would be if you were defending a justifiable shooting?
Seiden: It depends on how strong the facts are in your favor. For instance: you’re sitting in the café enjoying your cup of coffee and someone in a suicide vest with an AK 47 runs in shouting “Allah Akbar” and you shoot them? I don’t think it would make any difference if you had a modified weapon or a non-modified weapon or if you used “Thermonuclear” ammunition or not. That’s very clear-cut.
On the other hand, if you are in a politically-sensitive shooting but you have a modified weapon and specialized ammunition, the prosecutor could push for murder or manslaughter. They could push it to show your intent that you were looking for somebody to shoot; that you had a gun that was modified to make it “more deadly,” to quote the prosecutor from that case more than 30 years ago; that you had ammunition that at least in your mind was “more deadly.” You’ve created those issues.
You can’t pick the situation in which you have to defend yourself; the situation picks you. Why create those issues? Why not just use standard commercially available ammunition and a standard sidearm?
The sidearm is a tool to protect you and your loved ones from death or great bodily harm. The more issues you create by modifications or engraving or unusual ammunition, the more ammunition it gives the prosecutor to try to convict you or the civil lawyer to try to get a huge civil judgment against you.
eJournal: People hope their attorney can get them out of trouble!
Seiden: A few years after Alvarez, in a shooting that occurred in 1988 just a block or two away from the video arcade, the judge sentenced Officer William Lozano to four years, but allowed him to remain free pending the resolution of his appeal. We changed the venue to Orlando, retried it and won it. The point is, while we did these cases for virtually nothing except fundraising to raise expenses for experts and other things, you'd have to be a multi- multi-millionaire to be able to afford that kind of defense today.
Every single point was fought and tested. There was nothing genteel about either of those two trials. The prosecution pulled some nasty stuff. They put witnesses on who we were later able to prove were not even in the game room at the time of the shooting.
eJournal: So little has changed! Although we would hope for a focus on justice, prosecutors are subject to the competitive need to win–whether 30 years ago in that trial or more recently in the Zimmerman trial.
Seiden: The police department in Zimmerman, didn’t see any need to arrest him, and the prosecutor’s office in that jurisdiction didn’t want to charge him, so the governor appointed a special prosecutor who was then the state attorney in Duval County and a couple of surrounding counties and she prosecuted him just as aggressively as could be done.
It appeared to me to be a Stand Your Ground case, although admittedly he didn’t use good judgment in approaching this young man. Many arguments have been made either way, but it is never a good idea for a citizen to try and play policeman. It is one thing if you are attacked, if someone breaks into your home, if you are accosted on the street, or if someone tries to rob you in the store. It is another thing to go out looking for trouble.
eJournal: The necessity to use a gun to avoid being killed or injured by an attacker is not something we seek out. Now, however, you’ve expanded our viewpoint to see that we indeed do control some decisions well in advance of a self-defense incident. Through choices of guns and ammunition, we certainly can mitigate the legal aftermath of defending against the attack. Thank you for sharing your knowledge so we better understand these issues.
Mark Seiden graduated from the University of Miami, and immediately started the police academy in what is now Miami Dade Police Department. He served between 1970 and 1981, first in uniform, then as firearms instructor and then as a sergeant in the Detective Bureau. He attended University of Miami Law School, completing the first two years of classes in the evenings while still working as a police officer. He is honorably retired from police work, having taken early retirement to practice law.
While wrapping up his law degree, he interned in the major crimes homicide section for the State Attorney’s Office, and then Roy Black hired him right out of law school. They worked as partners at Black & Seiden for 12 years, until Seiden opened his own firm in January of 1995. He retired in September 2013. He is listed in Best Lawyers in America, Top 100 Super Lawyers in the state of Florida and Legal Elite, receiving the highest possible AV Preeminent rating from Martindale Hubbell for Ethics and Ability.
Seiden commented that while he enjoyed practicing law, he reached a certain point where he decided he “didn’t want to die still hitched to the wagon while I still had some good years and my health left.” His Affiliation with the Network is due to his generous willingness to “do triage if something happened to a member in Florida,” he explains.
To read more of this month's journal, please click here.