In my last column, I described how a group of men from South Carolina, mostly businessmen, were playing in a friendly poker tournament in their apartment-complex recreation room and were busted byBob Ciaffone is one of America’s best-known poker players, writers, and teachers. He has numerous poker tournament wins and placings, the most prominent being third place in the 1987 World Championship. He has been a poker teacher since 1995, with his students having earned well over a million dollars in tournament play. Bob's website is www.pokercoach.us
the police. Their lawyer, Jeff Phillips (himself a poker player), told me they were charged under Section 16-19-40 of the SC Penal Code. The statute they were charged under is unique in state law. This is an anti-gambling statute that is combined with a portion that forbids nearly all games played with dice or cards, whether or not any wagering is involved. No other state in the nation attempts to regulate the mere playing of games, as opposed to gambling. Here is the statute, which was passed by the South Carolina Legislature on Dec. 18, 1802, in much the same form as it exists today. I received this information about the statute date over the phone from the Coleman-Koresh Law Library reference desk in Colombia, the capital city of South Carolina. Note part (a).
“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, (c) 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, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.”
Here is another South Carolina statute (not used in this case) that is even more outrageous, forbidding all games on the Sabbath. This one was passed in 1799, and at that time pertained only to Sullivan Island in South Carolina, until later extended to be statewide.
“SECTION 16-19-70. Keeping gaming tables open or playing games on the Sabbath. Whoever shall keep or suffer to be kept any gaming table or permit any game or games to be played in his house on the Sabbath day, on conviction thereof before any court having jurisdiction, shall be fined in the sum of fifty dollars, to be sued for on behalf of, and to be recovered for the use of, the State.”
As you see, the first statute declares playing any games using cards or dice unlawful (whist and backgammon are exempted). The second statute states that you cannot permit any game or games to be played in your house on the Sabbath. These laws are so offensive that they make you wonder how they could exist in the United States of America. I would like to take you through the legal reasoning process that shows they are not constitutional, and that the poker players cannot be convicted of a crime under the statute that they violated.
Quick reference to South
games and betting laws
||Any game with cards or dice
||Anytime, especially the day of the Sabbath
||In any tavern, inn, liquor store, or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race fi eld or open place
The due process clause of the 14th Amendment to the Constitution not only guarantees us procedural due process, but substantive due process. This means that the lawmaking ability of a state is not unlimited. The ability of a state to make laws is restricted in order to guarantee fundamental fairness, justice, and liberty. States are not permitted to enact laws without having a legitimate governmental interest in regulating or prohibiting an activity. In the 2003 Patrick case, the U.S. Supreme Court said, “If the substance, meaning, or effect of a law or action of a government infringes upon a fundamental right to liberty, then the state must show that its infringements are necessary to achieve some compelling governmental interest.” One of our fundamental rights is guaranteed by the Fourth Amendment to the Constitution, which states in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” The due process clause has also been utilized to recognize unenumerated rights like the right to privacy.
A state is allowed to pass laws against gambling in order to further the legitimate state interest of protecting morals. A law against playing any game that uses cards or dice is an overly long stretch by the state in protecting morals, and is highly unlikely to pass a constitutionality test. Laws like the statutes above look like they reflect a superstrict view of morality held by a few small religious groups such as the Puritans two or three centuries ago, and are still being inflicted by the state of South Carolina upon our world of the 21st century. This may bring the First Amendment protection against the establishment of a state religion into the picture.
Here are some legal points that work in favor of the poker players:
1. If a statute has a substantial part of it that is unconstitutional, the whole statute is invalid. Even if the part of it that pertains to your particular activity passes muster, you cannot be convicted under it.
2. You have standing with the court to challenge the statute even if your rights were not violated, as long as there is a substantial chance that someone else’s might be. The 1973 U.S. Supreme Court case of Broadrick v. Oklahoma departs from traditional rules of standing by allowing litigants to challenge a statute, “not because their own rights of free expression are violated … but because of the possibility that third parties engaging in activities protected by the First Amendment might be chilled from such activity.”
3. An unconstitutional statute does not have to actually be used to prosecute anyone for it to be invalidated. In the case of Epperson v. Arkansas, in which a teacher, Susan Epperson, challenged a state statute making it unlawful to teach any theory of evolution or adopt or use a textbook that teaches evolution, the Supreme Court specifically noted, “There is no record of any prosecutions under the statute. It is possible that the statute is presently more of a curiosity than a vital fact of life.” Then it said, “Nevertheless, it is our duty to decide the issues presented.” We must conclude that even if no one in South Carolina has ever been arrested for violating the unconstitutional part of these statutes (which in a statute this old would be impossible to prove), it is still valid to take issue with the statute as a whole.
As you see, I believe the Greenville poker players have an excellent chance to win their case. Even if they lose on the first round, an appeal should be considered. In that event, court costs would be much higher, and it would be reasonable to support their efforts with a special fund from the poker community. However, I am guessing it will not come to that. What often happens in these raids is that the charges are dropped and the case never goes to court. In such a case, one wonders why the police run the risk of a raid in the first place, since there is the risk that a police officer or a player could be injured. In my home state of Michigan about 30 years ago, three people were shot, one fatally, in one of these raids because the players thought the game was being hijacked.
A police tactic more common than one would think is, “We will drop the charges if you do not try to recover what was seized in the raid.” (In these cases in which charges are never pressed, you have to wonder if the raids are mainly police fundraisers, and whether the methods for tracking what was seized always accurately account for the full amount.) Poker players often go for that deal, but I sure hope no one in South Carolina does.