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Contracts and Poker: Home Games

by Scott J. Burnham |  Published: Mar 23, 2022

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When Justice Stephen Breyer recently announced his retirement, the U.S. Supreme Court stood to lose another poker player. Many justices have expressed a fondness for poker, but don’t seem to have sought advice on whether their game was legal.

Is your home game legal?

I used to tell my law students that when they were asked for legal advice that they were not in a position to give, they should stroke their chins thoughtfully and respond, “Hmmm. It depends on the jurisdiction.” So it is no surprise that the answer to this question – since the law is up to each state, and the states are all over the place – depends on the jurisdiction.

It shouldn’t be that hard for you to research the law of your jurisdiction. Like the Supreme Court justices, you might not want to know what the law says, thinking you will benefit from your ignorance, but the old adage generally holds true – ignorance of the law is no excuse.

I don’t recommend asking state officials like the Attorney General or your local police for direction. Their job is to enforce the law, not to interpret it for you, and they won’t necessarily give you a straight answer, especially when the answer will depend on a lot of different factors. And as a practical matter, you don’t want to ask, “Would it be legal to have a poker game in my home at 135 Oak Street?”

So you may have to look it up. In theory, everyone is supposed to be able to read the statutes, but in practice it helps to be a lawyer. Here is some guidance.

The starting point is easy. In every jurisdiction, the default rule (the rule in the absence of anything to the contrary) is that all gambling is illegal, so you are looking for an exception to that rule – perhaps a law specifically addressing poker or that states that certain forms of gambling are legal. If you can’t find it, assume it is illegal.

My home state of Montana has the curious rule that “Except as specifically authorized by statute, all forms of public gambling, lotteries, and gift enterprises are prohibited,” making one wonder about private gambling.

If you find rules relating to poker, look closely at the context, as the rules may distinguish among various venues offering poker games. States that have authorized casino gambling, for example, might state that poker is legal in licensed establishments. Others may refer to a charity game, which is generally a game run by and for the benefit of a non-profit organization. Obviously, you should obtain professional advice if you are thinking of that kind of operation, so we will stick to regular home games for purposes of this discussion.

Pay attention to definitions, which may be found in a different section of the statutes, for words in statutes mean what the statute says they mean, not what the dictionary says they mean. You are likely looking for a reference to a “social game” or a “private game.” Make sure to determine how those words are defined.

Oregon, for example, states that, “Gambling does not include social games,” and then carefully defines that term. And there is the further caveat that local governments may also regulate social games. Nevada prohibits unlicensed gambling games, but the definition of gambling games excludes “games played with cards in private homes or residences in which no person makes money for operating the game, except as a player, or games operated by qualified [charitable] organizations.”

We all know that the term “home game” covers a wide gamut. It may be a small circle of friends who get together in someone’s den every Friday night (think Felix and Oscar’s game in The Odd Couple), or it may be part of the underground poker economy, complete with professional tables, dealers, and a rake (think Teddy KGB’s game in Rounders). The lawmakers are not ignorant of these distinctions, and if they allow home games, they may throw in some descriptive factors in order to allow the former while prohibiting the latter.

Iowa, for example, lists nine rules that must be complied with for “games between individuals” to be legal, the most interesting of which is that no one can win or lose more than $50 during a 24-hour period! Texas, where the legality of poker parlors are in the news, states that the prohibition of gambling does not apply if “(1) the actor engaged in gambling in a private place; (2) no person received any economic benefit other than personal winnings; and (3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.”

Finally, if you find that home games are not permitted, check the remedies for what happens to you if you are caught playing. Many states are more concerned with going after the organizer of the game, saving the punishment for him, while the other players are seen as dupes who were taken in. If nothing happens to players, what do you have to lose besides your money if your game is busted?

In the District of Columbia, for example, punishment seems reserved for the persons who “induce, entice, and permit any person to bet or play at or upon any such gaming table or gambling device, or on the side of or against the keeper thereof.” And in Massachusetts, you can go after not just the owner of the house where the game was played, but also the winner of your money, to recover what you lost.

As for Justice Breyer, I find no exception in the Code of the District of Columbia laws permitting a home game, but maybe he played in Virginia, which has one of the clearer provisions, stating that “Nothing in this article shall be construed to make it illegal to participate in a game of chance conducted in a private residence, provided such private residence is not commonly used for such games of chance and there is no operator as defined in [the statute].” ♠

_Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at profburnham@yahoo.com.