Poker Wins a Big Court Decision

Our beloved game of poker has received a big boost from a recent court decision in the state of South Carolina. A group of poker players were busted in a 2006 police raid in the town of Mt. Pleasant, a suburb of Charleston. About 20 of them pleaded guilty and received a small fine. But five of the players, made aware of the serious inadequacies of South Carolina state laws on gambling by a series of three columns in Card Player that I had written concerning a similar prior poker case, bravely chose to fight the charge against them. (These columns appeared in the Dec. 13, 2005, Dec. 27, 2005, and Jan. 10, 2006, issues of Card Player.) The third column referred to South Carolina Statute 16-19-40(a) and was titled “An Unconstitutional Anti-Gambling Statute.” The column stated, “The statute in question cannot legally be used to enforce gambling violations.”

Statute 16-19-40(a) makes illegal “any game with cards or dice.” The statute became state law in 1802 and has remained substantially unchanged since that time. There is evidence that at the time it was written, it was meant to be taken literally, meaning that the use of cards or dice did not have to be connected to gambling, but was prohibited for any game. Back then, some religious groups considered these artifacts to be tools of the Devil (perhaps a few still do).

We do not know if this law prohibiting games that used cards or dice was ever enforced as the 1802 legislature intended. In modern times, it has been used only as an anti-gambling regulation. Law enforcement gets to cherry-pick which card and dice games it shuts down. The result of giving law enforcement such wide discretion is that in some South Carolina localities, a poker game may get raided, and in others, you can even advertise your game on the Internet without fear.

Despite the fact that anyone can look at this draconian statute and wonder how such a law can be legal in any state of the United States of America, there is no record of anyone challenging it in court and attempting to have it ruled unconstitutional. This is why all of us who played a role in bringing it into question are so elated with the decision. Here is what happened in court:
The Municipal Court judge who heard the case ruled that while he was convinced poker is a game of skill, there were no higher-court decisions ruling that was relevant under this old statute. He thus found the five players guilty of illegal gambling. His opinion suggested that this was a matter for a higher court to decide. His decision was duly appealed.

The Circuit Court, which functions as an appellate court, dismissed all charges against the players. It also said many things about South Carolina poker law that are legally helpful to those who play the game. Here are some of the legal points (in boldface) that the appellants made that were supported in the decision given by the appeals judge. The quotes following them are from the decision.

The “dominant factor” test is used by South Carolina law.
“This court agrees with appellants that the South Carolina Supreme Court, if faced with the question, would adopt the dominant factor test for the purpose of defining the term ‘gaming’.”

Hold’em poker is a game where skill predominates over luck.
“This court has concluded that Texas hold’em is not ‘gaming’ within the meaning of South Carolina law because skill predominates over chance.

“The Municipal Court found the evidence ‘overwhelming’ that Texas hold’em is a game of skill. This court affirms that finding.”

The player’s home where the poker was played was not a gambling house under the law.

“Necessarily, then, a place devoted exclusively to the playing of Texas hold’em is not a ‘house used for a place of gaming’ under Statute 16-19-40. Because appellants were not in a prohibited location, their convictions under Statute 16-19-40 must be reversed.”

The portion of the statute the players were charged under is unconstitutional as written because it is too vague and overly broad.

“As an alternative basis for reversing appellants’ convictions, this court concludes that Statute 16-19-40(a) is unconstitutionally vague and overbroad.”

“This court concludes that SC Statute 16-19-40(a) in the absence of the dominant factor test is impermissibly vague, and as such cannot be applied to appellants consistent with principles of due process.”

“Section 16-19-40 sweeps within its ambit a very broad range of entirely innocent conduct … It criminalizes a variety of games played with cards or dice regardless of whether the dominant factor in a particular game is skill or chance. As appellants note, if Statute 16-19-40 applies to their conduct — the playing of Texas hold’em in a private home — then it is a virtual certainty that the statute is violated on a daily basis all over the state.”

This Circuit Court decision shows that the Card Player columns claiming that the South Carolina law on poker is unconstitutional were absolutely correct. Because this is a Circuit Court decision, it applies to the whole state of South Carolina. State Attorney General Henry McMaster, after a consultation with the local prosecutor, has filed a letter of intent stating that he plans to appeal the decision to the South Carolina Supreme Court. So, we’re not done yet; stay tuned.

There are quite a few people who deserve praise for helping to bring about this wonderful decision. I’ll start with the poker players who were willing to go to court in order to fight this unjust South Carolina law. These players are Bob Chimento (their spokesperson), Scott Richards, Michael Williamson, Jeremy Brestel, and John Willis. Jeff Phillips is the Greenville, South Carolina, lawyer (and poker player) who represented the poker players from day one. He was joined on the appeal by William Wilkins, a leading South Carolina appellate lawyer. Chuck Humphrey is a Colorado gaming lawyer (and poker player) who helped greatly with the defense’s arguments and got the Poker Players Alliance (PPA) involved in the case. The briefing work for the PPA was done by Tom Goldstein, who is a leading U.S. Supreme Court litigator, having argued before that court more than 20 times so far. Player and World Poker Tour commentator Mike Sexton and statistics professor Dr. Robert Hannum of the University of Colorado gave stunningly effective expert testimony that explained the extensive skill element in poker. Katie Holtz and some other ladies in the University of South Carolina’s Colman Karesh Law Library researched the history of South Carolina’s poker law, and provided me the information that tracked it all the way back to 1802.

There are several organizations that also should be thanked. I’ll start with Card Player magazine. I would especially like to thank my Editor in Chief Steve Radulovich, Associate Publisher Justin Marchand, and Publisher Jeff Shulman for their confidence. They allowed me to write that initial series of columns that called attention to the unconstitutionality of the South Carolina poker law. (Although I have studied state poker laws extensively, I am not a lawyer.) The Post and Courier newspaper in Charleston gave fine editorial support that explained the inadequacy of South Carolina’s poker law, and has called for new poker legislation (thank you, Schyler Kropf). And, the Poker Players Alliance was willing to put up the money for the excellent legal team that handled this case.

Bob Ciaffone has authored four poker books, Middle Limit Holdem Poker, Pot-limit and No-limit Poker, Improve Your Poker, and Omaha Poker. All can be ordered from Card Player. Ciaffone is available for poker lessons: e-mail [email protected]. His website is www.pokercoach.us, where you can get his rulebook, Robert’s Rules of Poker, for free. Bob also has a website called www.fairlawsonpoker.org.