SOUTH CAROLINA POKER LAWS ARE UNCONSTITUTIONAL

SOUTH CAROLINA POKER LAWS ARE UNCONSTITUTIONAL

by Bob Ciaffone, founder of FLOP (Fair Laws On Poker)

I do not believe the law that South Carolina poker players are charg= ed under when raided by the police will stand up as constitutional under close scrutiny. (Poker players are charged under Section 16-19-40 of the SC Penal Code.) South Carolina's laws on gambling are mixed in with laws on game-playing and playing games on the Sabbath. The statute these players are charged under says that no game using cards or dice can be played in South Carolina except whist and backgammon. You cannot = even play children’s games like Monopoly or Parcheesi, according to the le= tter of the law!

The statute poker players are charged under is u= nique in state law. This is an anti-gambling statute that is combined with a port= ion 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 outlaw the m= ere playing of certain games, as opposed to gambling. Some other states had such laws, but modified or discarded them well before the 20^th centur= y.

The Puritans, who came to America in the 1600’s, = opposed "'idleness," and treated cards and dice as integrally evil object= s. The Massachusetts Bay Colony outlawed not only gambling, but the possession of cards and dice, even in private homes.&nbs= p; The Puritan era is long gone––except in South Carolina’s poker laws.

American laws against the playing of games with = cards and dice are a relic of the English laws used in medieval times, where games were divided into the categories of “lawful games” and “unlawful games.” In the 2001 US Supreme Court case Atwater v. = City Of Lago Vista, part of the decision reads, R= 20;One 16^th Century statute...authorized peace officers to arrest perso= ns playing “unlawful games” like bowling, tennis, dice, and cards,= and for good measure extended the authority beyond players to include persons “haunting” the “houses, places and alleys where such games shall be suspected to be holden, exercised, use= d or occupied.” 33 Hen. VIII, ch 9, Statutes 11-16, 5 statutes at large 84-85 (1541). The first Engli= sh law against gambling per se, as distinct from playing unlawful games, was passed in the second half of the 17^th century. The list of ̶= 0;unlawful games” promulgated by Henry VIII in 1541 was not fully repealed in England= until the 1845 Gaming Act.

The concept of unlawful games, and cards or dice= being unlawful artifacts, was still alive in Amer= ica around the time the South Car= olina statute was originally written. This is a quote from the historical records= of the Carr family of California= .

̶= 0;May 23, 1807. William Soloman, aged 16, 8 July last, and with the consent of William Carr, his guardian, h= as placed himself as an apprentice to John Roe of Florida, carpenter and joiner, to lear= n said trade, to dwell, continue and serve until he arrives at the full age of 21. During this time, at cards, dice, or any other unlawful = game, he shall not play…”

Here is the present South Carolina statute used to prosecu= te poker players, which was originally passed by the SC legislature on December 18, 1802, in much the same form as it exists today. I received this informa= tion about the statute date over the phone from the Coleman-Koresh Law Library reference desk in Colombia, the capitol 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 pl= ace 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 denomina= tion 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 n= ot exceeding twelve months and forfeit a sum not exceeding two thousand dollar= s, for each and every offense.”

You can see that the statute attempts to ban many non-gambling games, as well as gambling games. This is shown by the name of= the section (“unlawful games and betting” rather than “unlawf= ul 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 start, and most importantly, by the part that specifies which non-gambling games are legal (implying that there are other non-gambling games that are illegal).

There is another South Carolina statute (not used in th= is case), even more outrageous, forbidding the playing of 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.” The difference in attitudes from then and now can be seen from the fact that in 1803, two South Carolina counties complained to the state government that the Sabbath was being violated––by fishing in the Catawba Rive= r on Sunday!

In my 1990 work, “A Comparative Study of S= tate Laws on Social Gambling,” I wrote the following about this particular Blue Law type statute. “As can be seen, playing a game at one's house= on Sunday, even though no wagering be involved, is declared illegal in South Car= olina. Is it constitutional for a state to prohibit people from playing a friendly game of bridge with family-members in their own home on a Sunday afternoon?= The author thinks not, and finds it hard to believe such a law could have been passed in any state of the United States of America.”

As you see, the first statute (which is the one = the poker players were charged under) declares playing any games using cards or dice unlawful (whist and backgammon are exempted). The second statute says = 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 our country.

As far as we can tell, in modern times, these la= ws are not enforced according to their literal construction. (You can be sure if t= hey had been regularly enforced according to legislative intent and the plain meaning of their words, they would have been discarded a long time ago.) Nowadays, South Carolina pretends they are only anti-gambling statutes. However, this does not mean = the state can get away with leaving these old statutes on the books and enforci= ng them in a manner different from the original legislative intent. The state = has an obligation to change the language to make it compatible with the US Constitution as it is presently interpreted by the courts.

South C= arolina is the only state in the nation that puts anti-gambling laws in the same statute with laws against non-gambling game-playing. It is my opinion that such a construction violates our constitutional right to due process, and produces an illegally broad statut= e. The state has no compelling interest in preventing people from playing non-gambling card games or games only on specified days. We are not a Taliban-run country!

These two statutes make one wonder if the govern= ment can go this far in the pursuit of morality. Does our Constitution allow Taliban-type laws? The state is allowed to pass laws against gambling in or= der to further the legitimate state interest of protecting morals, but a law against playing any game that uses cards or dice is an overly long stretch = by the state in protecting morals. It is highly unlikely to pass a constitutionality test in the 21st century.

I would like to take you through the legal reaso= ning process that shows these statutes are not constitutional, and that the poker players cannot be convicted of a crime under the statute that they are char= ged with violating. All the cases quoted in this presentation are US Supreme Co= urt cases.

The lawmaking power of the state is not absolute= . Here are some quotes from 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 i= s it an unreasonable, unnecessary, and arbitrary interference with the right of = the individual to his personal liberty...”

It looks like in these statutes we are being som= ehow denied a fundamental right. In any law case that might be appealed and go t= o a higher court, such as a state supreme court or t= he US 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 of our constitutional rights are being violated, and where in our Constitution the particular fundamental right is stated or implied.

According to the US Supreme Court, a fundamental= right is, “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed̶= 1; (Palco v. Connecticut, 1937). In Moore v. = East Cleveland (1= 977), the court used the term “deeply rooted in this nation’s history= and tradition.” Is playing games with cards or dice important enough to f= it such a lofty description?

The First Amendment to our Constitution is consi= dered to be the essence of a free society. The part of that amendment dealing with freedom of religion says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Laws l= ike the statutes above look like they reflect a super-strict view of morality h= eld 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. There were (and still are) some social fundamentalist religions that frowned on cards and dice, and they may have foisted their Taliban-like view into the law. The 2003 court case Lawrence v Texas concerned sodomy, but I would like to take quotes from it and apply them to playing games with cards or dice. Justice Anthony Kennedy wrote the opinion= of the court in Lawrence. He said, "The condemnation has been shaped by religious beliefs, conce= ptions of right and acceptable behavior… For many persons these are not triv= ial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. = The issue is whether the majority may use the power of the State to enforce the= se views on the whole society through operation of the criminal law." Ken= nedy quotes another decision saying "Our obligation is to = define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).<= o:p>

Another place to look for a Constitutional infringement on our rights is in the Fourth Amendment, which reads: “= The right of the people to be secure in their persons, houses, papers, and effe= cts, 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 have a warrant= to bust a poker game. Does this mean the players were not protected by the Fou= rth 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. In the Lawrence case, the opinion says, “Liberty protects the person from unwarranted government intrusions into a dwelling = or other private places.” 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.”

The due process clause of the 14th Amendment says, "Nor shall any State deprive any person of = life, liberty, or property, without due process of law..." This is interpret= ed to not only guarantee us procedural due process, but also substantive due process. This means the lawmaking ability of a state is not unlimited. The ability of a state to make laws is restricted in order to guarantee fundame= ntal fairness, justice, and liberty. 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.” The Court says in <= st1:place w:st=3D"on">Lawrence, "The states are not perm= itted to enact laws without having a legitimate governmental interest in regulati= ng or prohibiting an activity. Our opinions applying the doctrine known as 'substantive due process' hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest." The due proce= ss clause has also been utilized to recognize un-enumerated rights like the ri= ght to privacy.

Our federally guaranteed constitutional rights m= ust also be acknowledged and observed by all state and local laws. In the 1949 = case Wolf v. Colorado<= /st1:State>, 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 searc= hes “is the same under the Fourth and Fourteenth Amendments,” meani= ng the states are bound by federal standards in this area. <= /p>

The South Carolina statute also should be voided for vaguen= ess. In Papachristou v. Jacksonvill= e (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 fa= ir notice that his contemplated conduct is forbidden by the statute.” The Court additionally said the Jacksonville l= aw “makes criminal activities which by modern standards are normally innocent” and “puts unfettered discretion in the hands of the <= st1:City w:st=3D"on">Jacksonville police.” These are exactly the things the South Carolina law forbidding games wi= th dice or cards does! All you need to do is change the word “Jacksonville” to “South Carolina.” To be excessive= ly vague may be to be unconstitutional. Justice Black, in Coates v Cincinnati, wrote, "This Court has long held that laws so vague that a person of common understanding cannot know what is forbidden are unconstitutional on their face."

Here are some other legal points in this case th= at work in favor of poker players:

(1)<= /span> You must have standing to challenge the validit= y of a law. You do have standing with the court to challenge the statute even if y= our rights were not violated, as long as there is a substantial chance that som= eone else’s might be. The 1973 U.S. Supreme Court case Broderick 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 activities protected by the First Amendment might be chilled from = such activity.”

(2)<= /span> 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= . A facially invalid law cannot be used to prosecute anyone.<= /p>

(3)<= /span> An unconstitutional statute does not have to ac= tually be used to prosecute anyone under the unconstitutional portion for it to be invalidated. In the case Epperson v. Arkansas, where a teacher, Susan Epperson, challenged a state statute making it unlaw= ful to teach any theory of evolution or adopt or use a textbook that teaches evolution, the Supreme Court specifically noted that, “There is no re= cord 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 sai= d, “Nevertheless, it is our duty to decide the issues presented.” = In "Lawrence," Kennedy wrote, “The history of non-enforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct.” He was talking about sodomy, but the lack of enforcement for the South Carolina statute as a law against playing nearly all games with cards or dice clearly shows the moribund character of criminalizing the playing of non-gambling g= ames using these devices. We must conclude that even if no one in South Carolina had ever been arrested = for violating the unconstitutional part of these statutes (which in a statute t= his old would be impossible to prove), it is still valid to take issue with the statute as a whole.

I think the answer to that question of whether t= his 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 non-gambling game with cards or dice. Otherwise, you could not play even bridge or Monop= oly with your family and friends. Imagine police breaking down the door of a ho= me and raiding such a game. =

South C= arolina is the only state in the nation that tries to f= orbid non-gambling games that use dice or cards. Those other states that had such= a statute have long ago changed the wording of their laws. Justice Kennedy wr= ites in the Lawrence decision, “The Constitution’s authors “kn= ew times can blind us to certain truths and later generalizations can see that laws thought unnecessary and proper serve only to oppress. As the Constitut= ion endures, persons in every generation can invoke its principles in their own search for greater freedom.”

South Carolina Section 16-19-40 forbidding the p= laying of non-gambling card games is an over-reach of the state’s power to enforce morality. The statute= in question cannot legally be used to enforce gambling violations. It is facia= lly invalid, meaning no one can be prosecuted under it. The net result of ruling the statute invalid is the state of South Carolina will have the opportunity to bring its gambling laws into the 21st century.