An Unconstitutional Anti-Gambling Statute

In a couple of previous columns, I discussed some legal points connected with a recent poker bust in South Carolina, in which some people holding a poker tournament in their apartment-complex recreation room were arrested. I pointed out that the South Carolina statute they were charged under has no counterpart in any other state, and is constitutionally suspect. If a statute prohibits a substantial amount of constitutionally protected behavior, the whole statute is invalid and cannot be used to prosecute anyone, even someone who engages in behavior that is not constitutionally protected.



Here is part of the statute in question:



"SECTION 16-19-40. Unlawful games and betting. If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, © any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts …" (the rest of the statute discusses penalties).



You can see that the statute attempts to ban many nongambling games, as well as gambling games. This is shown by the name of the section ("unlawful games and betting" rather than "unlawful gambling"), the fact that the words "used as a place of gaming" appear in the middle of the statute (modifying only "store" and "house") rather than at the beginning, and most importantly, by the part that specifies which nongambling games are legal (implying that there are other nongambling games that are illegal).



This statute makes one wonder if the government can go this far in the pursuit of morality. It appears in this statute that we are somehow being denied a fundamental right. In any law case that might be appealed and go to a higher court, such as a state Supreme Court or the U.S. Supreme Court, it is necessary that an argument be used in front of such a body that was brought up in the initial trial. So, we must find out which right is being violated, and where in our Constitution the particular fundamental right is stated or implied.



All of the cases used in this column are U.S. Supreme Court cases. According to the U.S. Supreme Court, a fundamental right is "implicit in the concept of ordered liberty" such that "neither liberty nor justice would exist if they were sacrificed" (Palco v. Connecticut, 1937). In Moore v. East Cleveland (1977), the court used the term "deeply rooted in this nation's history and tradition." Is playing games with cards or dice important enough to fit such a lofty description?



It would be nice if there were something in the First Amendment to pin our hopes on, as that law is considered to be the essence of a free society. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Unfortunately, the right to assemble is directly connected to the part about petitioning the government, and probably does not include assembling to play card games. The South Carolina statute does look like it might infringe on our freedom of religion, as there are some social fundamentalist religions that frown on cards and dice, and they may have foisted their view into the law. However, it seems better to look elsewhere in the Constitution for a clearer and more suitable place to claim that one of our basic rights is being stomped on by the statute in question.



I believe the right place to look for a Constitutional infringement on our rights is the Fourth Amendment, which reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Of course, the police had a warrant to bust the poker game. Does this mean the players were not protected by the Fourth Amendment?



Fortunately, the Fourth Amendment is interpreted to mean more than just a warrant needs to be issued in order for an invasion by the police to be reasonable. Here are some quotes from the U.S. Supreme Court in an unrelated case, Lochner v. New York, 1905. "It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state." "Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty …" In the 1923 case Meyer v. Nebraska, Justice McReynolds explained the word "liberty" by writing, "Without doubt, it denotes not merely freedom from bodily restraint, but also … to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."



I think the answer to that question of whether this particular South Carolina statute is an unreasonable interference with personal liberty must be that although it is reasonable to raid a place where there is illegal gambling, it is not reasonable to raid a place because people are playing a nongambling game with cards or dice. Otherwise, you could not play even bridge or Monopoly with your family and friends. Imagine the police breaking down a door and raiding such a game.



Ever since the 14th Amendment was passed after the Civil War, our federally guaranteed constitutional rights also must be acknowledged and observed by all state and local laws. In the 1949 case Wolf v. Colorado, the Court said, "The security of one's privacy against arbitrary intrusion by the police – which is at the core of the Fourth Amendment – is basic to a free society. It is therefore implicit in the concept of liberty and as such is enforceable against the states through the Due Process Clause" (of the 14th Amendment). In Ker v. California (1963), the Court said that federal constitutional standards of reasonableness of searches "is the same under the Fourth and 14th Amendments," meaning the states are bound by federal standards in this area. In the famous 1963 case Gideon v. Wainright, there is a part that reads, "Any state conduct which is grossly unfair denies due process of law."



A statute forbidding the playing of nongambling card games is an overreach of the state's power to enforce morality. It might be argued that the part of the South Carolina law that is constitutionally suspect is not enforced by the police.



However, nonenforcement is irrelevant, as per Epperson v. Arkansas, the evolution case discussed in my previous column.



The South Carolina statute also should be voided for vagueness. In Papachristou v. Jacksonville (1972), the Court, in striking down a city vagrancy law, said, "A law is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." The Court additionally said the Jacksonville law "makes criminal, activities which by modern standards are normally innocent" and "puts unfettered discretion in the hands of the Jacksonville police." These are exactly the things the South Carolina law forbidding games with dice or cards does! All you need to do is change the word "Jacksonville" to "South Carolina."



I believe that South Carolina has a law violating our Fourth Amendment protection against unreasonable search and seizure. It is the only state in the nation that tries to forbid nongambling games that use dice or cards. The statute in question cannot legally be used to enforce gambling violations. It is facially invalid, meaning no one can be prosecuted under it. The net result is that the state of South Carolina will have the opportunity to bring its gambling laws into the 21st century.

Bob Ciaffone has authored four poker books, Middle Limit Holdem Poker (available at www.CardPlayer.com), Pot-limit and No-limit Poker, Improve Your Poker, and Omaha Holdem Poker. Ciaffone is available for poker lessons: e-mail [email protected]. His website is http://www.pokercoach.us/, where you can get his rulebook, Robert's Rules of Poker, for free.