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South Carolina Update

An archaic statute

by Bob Ciaffone |  Published: Jun 11, 2008

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In the fall of 2005, there was a police raid made on a group of people who were playing poker in an apartment-complex recreation room near Greenville, South Carolina. After several discussions with some of the busted players and their lawyer, I decided to do some legal research, based on the way the state law there governing poker is worded. Based on that research, I wrote a series of three columns in Card Player, stating that the law under which the players were charged was unconstitutional.

Let me state up front that I am not a lawyer, do not have a law degree, and have never attended law school; nor do I speak for this magazine on legal matters.

On the other hand, I have done quite a bit of research on state laws that apply to poker. A study that I did in 1990, "A Comparative Study of State Laws on Social Gambling," is to the best of my knowledge still the only academic work on this subject. It was presented at an international conference on gaming in London that year, and was very well-received.

In 2006, there was another police raid on a poker game in South Carolina, this time in Mount Pleasant, a suburb of Charleston. Some of those players were familiar with my Card Player columns and contacted me. I agreed to help them. Most of the players in these raids decided to plead guilty to a misdemeanor and pay a small fine, and that was the end of it for them. But a few were willing to fight the charge. More than two years later, they still have not been able to get a court date. Let me explain why the prosecutors involved do not seem inclined to go to trial.

South Carolina has a unique approach, among the states of our country, to the way its gambling laws are constructed. They are patterned after an ancient English method, which that country discontinued in the 19th century. Instead of declaring gambling to be illegal, the government declared certain games to be illegal. The game did not have to be a gambling game to be against the law. Games like tennis and bowling were illegal under Henry VIII in the early 1500s. One reason was that the king preferred men to indulge themselves in martial arts such as archery. Historians have speculated on whether there was truly a threat to the country or just a lot of power exerted by the archery lobby.

In South Carolina, the statute under which the poker players are charged is titled "Unlawful Games and Gambling." Poker is not mentioned by name, but is included under the catch-all title "any game played with card or dice." You may think the wording was done by some sloppy lawmakers who forgot to put the word "gambling" in front of the word "game," but that would be an incorrect assessment.

This statute, South Carolina statute 16-19-40, originally became law in December of 1802, and has not been revised in a deeply meaningful way since. To give you the flavor of the times back then, a few months after this statute was passed, a couple of counties in South Carolina complained to the state government that the law against playing games on the Sabbath (another South Carolina legal anachronism) was being violated, and they requested enforcement assistance. The dastardly offense complained about was fishing in the Catawba River on Sunday!

Needless to say, the law is not enforced in South Carolina, either as it is plainly written or as it was intended by the legislature. Duplicate bridge players hold large sectional and regional tournaments there with impunity. Children play that evil dice game "Monopoly" without fear of punishment. On the other hand, every once in a while, the police raid a poker game. The arbitrariness of these raids can easily be seen. Do a Google search using the words "South Carolina" poker, and you will see more than 100 home games fearlessly advertised.

Is it OK to write a wide-sweeping law like this South Carolina law against playing games with card or dice as long as you enforce it as an anti-gambling statute? No, it's not. First, whether a law is enforced has nothing to do with whether it is valid or invalid. For example, in the famous 1965 case of Epperson v. Arkansas, the U.S. Supreme Court struck down a state law forbidding the teaching of evolution in the public school system, even though no one had ever been charged under it. Second, the state is not free to pass any law it pleases; laws must be connected to a legitimate area of state power. States have the power to make gambling illegal, but they cannot make everything illegal.

Let me use an analogy to make my point clear. Suppose the legislature thinks there is a problem in its state with nude dancing in public. The state could pass a law against it, as public morals are a legitimate regulatory realm. But, it could not pass a law against dancing, and enforce it against only nude dancing, even if it never enforced it against any other form of dancing.

Here is another example: Suppose that a state decided to fight terrorism by outlawing gunpowder, but enforce it only against bomb-makers. How long do you think it would take the National Rifle Association to get the law struck down as a breach of rights guaranteed to citizens under the Second Amendment?

One point I would like to make clear is that having a raked poker game without a state license is illegal anywhere in our country. There is a huge difference between gambling at poker -- which is legal in some states, but not in others -- and running a poker game "as a business." I try to help poker players, but if you are charged with running a gambling business, you need a good lawyer.

My hope in South Carolina is not just to get the poker players acquitted; it is not even to "just" get this particular bad piece of legislation ruled invalid. I would like to see South Carolina take a good hard look at a number of its gambling laws, like the law that states that you cannot play games on the Sabbath -- even in your own home with your family -- and the one that states that if a person does not sue within three months to recover the amount of a gambling loss, anyone else can sue the winner to recover that loss, and will receive triple the amount lost.

There was another bust in a Charleston suburb (Hanahan) on April 6, in which 26 people were arrested. Maybe I will get a chance to use the 22-page amicus brief that I helped prepare.

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 thecoach@chartermi.net. 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.