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Judge: Poker Betting Not Gambling But Game of Skill

A federal judge has ruled that poker is a game of skill and that therefore betting money on it is not gambling.

AP (“NY federal judge gives winning hand to poker fans, calling it a game of skill, not chance“):

A federal judge ruled Tuesday that poker is more a game of skill than chance and cannot be prosecuted under a law created to stop organized crime families from making millions of dollars from gambling.

The decision by Judge Jack Weinstein in Brooklyn was embraced by advocates of card games pushing to legalize Internet poker in the United States. The judge relied extensively on the findings of a defense expert who analyzed online poker games.

The ruling tossed out a jury’s July conviction of a man charged with conspiring to operate an illegal underground poker club, a business featuring Texas Hold’em games run in a warehouse where he also sold electric bicycles. There were no allegations in the case that organized crime was involved or that anything such as money laundering or loansharking occurred.

“Because the poker played on the defendant’s premises is not predominately a game of chance, it is not gambling” as defined in the federal law, the judge wrote in a lengthy decision that traced the history of poker and federal laws to combat illegal gambling.

NYT (“Poker Is More a Game of Skill Than of Chance, a Judge Rules“):

 The game was Texas Hold ‘Em. About $300 bought a place at the table in the back room of a warehouse on Staten Island, where waitresses floated around with food and drinks and the play lasted until breakfast.

The pot went not to the luckiest among them but to the most deft — the player who could guess his opponents’ intentions and disguise his own, make calculated decisions on when to hold and fold, and quickly decide how much to wager. That, anyhow, is how one federal judge saw it from his chambers in the Federal District Court in Brooklyn.

In a ruling that goes to the heart of what it means to play poker, Judge Jack B. Weinstein tossed out the conviction and vacated the indictment of the man who ran that gambling business. The judge’s reason: poker is more a game of skill than a game of chance, so game operators should not be prosecuted under the federal law the prohibits running an illegal gambling business.

“The most skillful professionals earn the same celestial salaries as professional ballplayers,” he wrote in the exhaustive 120-page ruling that detailed the history of poker in the United States. The decision comes as state courts across the country are grappling with whether playing poker defies the law. No federal court had ever ruled directly on whether poker constituted gambling. The United States attorney’s office, which was reviewing the decision, did not say whether it would appeal the case.

The Poker Player’s Alliance, an organization that works to decriminalize poker and that filed an amicus brief in the case, released a statement lauding the decision.

“As we worked for years defending players against vague gambling laws, we have patiently waited for the right opportunity to raise the issue in federal court,” John Pappas, the executive director of the organization, said in a statement. “Today’s federal court ruling is a major victory for the game of poker and the millions of Americans who enjoy playing it.”

Lawrence DiCristina ran the warehouse where the games took place — that was not in dispute — taking 5 percent of each night’s pot to cover the cost of his staff and profit for himself. He was arrested last summer, charged with operating an illegal gambling business, of which he was convicted in July. He faced up to 10 years in prison.

But Mr. DiCristina’s lawyer, Kannan Sundaram, a public defender, said poker was not a game of chance and therefore not subject to the law. He called an expert witness, Randal D. Heeb, an economist, statistician and poker player in national tournaments, who testified in a special hearing about the skill involved.

I should note that Mark Twain foretold this decision way back in 1870.

At that time, in Kentucky (said the Hon. Mr. Knott M. C.), the law was very strict against what it termed “games of chance.” About a dozen of the boys were detected playing “seven-up” or “old sledge” for money, and the grand jury found a true bill against them. Jim Sturgis was retained to defend them when the case came up, of course. The more he studied over the matter and looked into the evidence, the plainer it was that he must lose a case at last — there was no getting around that painful fact. Those boys had certainly been betting money on a game of chance. Even public sympathy was roused in behalf of Sturgis. People said it was a pity to see him mar his successful career with a big prominent case like this, which must go against him.

But after several restless nights an inspired idea flashed upon Sturgis, and he sprang out of bed delighted. He thought he saw his way through. The next day he whispered around a little among his clients and a few friends, and then when the case came up in court he acknowledged the seven-up and the betting, and, as his sole defence, had the astounding effrontery to put in the plea that old sledge was not a game of chance! There was the broadest sort of a smile all over the faces of that sophisticated audience. The judge smiled with the rest. But Sturgis maintained a countenance whose earnestness was even severe. The opposite counsel tried to ridicule him out of his position, and did not succeed. The judge jested in a ponderous judicial way about the thing, but did not move him. The matter was becoming grave. The judge lost a little of his patience, and said the joke had gone far enough. Jim Sturgis said he knew of no joke in the matter — his clients could not be punished for indulging in what some people chose to consider a game of chance, until it was proven that it was a game of chance. Judge and counsel said that would be an easy matter, and forthwith called Deacons Job, Peters, Burke, and Johnson, and Dominies Wirt and Miggles, to testify; and they unanimously and with strong feeling put down the legal quibble of Sturgis, by pronouncing that old sledge was a game of chance.

“What do you call it now!” said the judge.

“I call it a game of science!” retorted Sturgis; “and I’ll prove it, too!”

They saw his little game.

He brought in a cloud of witnesses, and produced an overwhelming mass of testimony, to show that old sledge was not a game of chance, but a game of science.

Instead of being the simplest case in the world, it had somehow turned out to be an excessively knotty one. The judge scratched his head over it a while, and said there was no way of coming to a determination, because just as many men could be brought into court who would testify on one side, as could be found to testify on the other. But he said he was willing to do the fair thing by all parties, and would act upon any suggestion Mr. Sturgis would make for the solution of the difficulty.

Mr. Sturgis was on his feet in a second:

“Impanel a jury of six of each, Luck versus Science — give them candles and a couple of decks of cards, send them into the jury room, and just abide by the result!”

There was no disputing the fairness of the proposition. The four deacons and the two dominies were sworn in as the “chance” jurymen, and six inveterate old seven-up professors were chosen to represent the “science” side of the issue. They retired to the jury room.

In about two hours, Deacon Peters sent into court to borrow three dollars from a friend. [Sensation.] In about two hours more, Dominie Miggles sent into court to borrow a “stake” from a friend. [Sensation.] During the next three or four hours, the other dominie and the other deacons sent into court for small loans. And still the packed audience waited, for it was a prodigious occasion in Bull’s Corners, and one in which every father of a family was necessarily interested.

The rest of the story can be told briefly. About daylight the jury came in, and Deacon Job, the foreman, read the following

VERDICT.

We, the jury in the case of the Commonwealth of Kentucky vs. John Wheeler et al., have carefully considered the points of the case, and tested the merits of the several theories advanced, and do hereby unanimously decide that the game commonly known as old sledge or seven-up is eminently a game of science and not of chance. In demonstration whereof, it is hereby and herein stated, iterated, reiterated, set forth, and made manifest, that, during the entire night, the “chance” men never won a game or turned a jack, although both feats were common and frequent to the opposition; and further more, in support of this our verdict, we call attention to the significant fact that the “chance” men are all busted, and the “science” men have got the money. It is the deliberate opinion of this jury that the “chance” theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it.

“That is the way that seven-up came to be set apart and particularized in the statute books of Kentucky as being a game not of chance but of science, and therefore not punishable under the law,” said Mr. Knott. “That verdict is of record, and holds good to this day.”

Apparently, it does.

h/t Tom Maguire

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Does this open the door to a professional Scrabble circuit?

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  2. sam says:

    Mark to W.C. Fields: Is this a game of chance?

    Fields: Not the way I play it.

    Like or Dislike: Thumb up 3 Thumb down 0

  3. DRS says:

    Darn it, Sam, I just went to IMDB for that quote! Now what do I do with it?

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  4. Tsar Nicholas says:

    If you’re sitting at a poker table and within 5 hands you don’t know who the sucker is then you’re the sucker.

    Good ruling. Judge Weinstein is a legend. This merely adds to his legacy.

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  5. Doubter4444 says:

    That’s the law, or was in CA. Before Casinos were allowed there were “card rooms” is various cities around the state that played nothing but Hold’em or Omaha.
    I remember playing in a couple of great seedy places while in collage.

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  6. The Q says:

    Then what about “gambling” on football or basketball games? It takes great skill to fill out an NCAA tournament bracket and since the 1st seed never loses to a 16 seed, what part of luck or chance plays into this decision? Hence this is not gambling, it is based on the skill of picking the #1 seed every time. Surely, that cannot be defined as gambling according to the judge’s ruling right?

    And what about playing the ponies. By carefully reading the racing forum, attending workouts, quizzing the stewards and trainers, jockeys and groomsman, one can skillfully pick more winners than losers.

    And what about boxing, Surely this isn’t a game of chance. 2 superbly conditioned athletes skilled in the art of self defense and pugilistic technique…by carefully weighing reach, conditioning and firght records, one can make an informed choice as to who will be the victor right?

    Me thinks this judge owes huge $$$$ to his bookie.

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  7. OzarkHillbilly says:

    If you are playing the odds, you are still just playing the odds. I still laugh at people who play on the boats. Had a buddy of mine who played them regularly (black jack), and he insisted he won more often than not. Nothing I said could sway him from this position. I asked him, can you count cards? (a skill not many could master) “No, that would be illegal!”

    The game is rigged.

    And may I remind everyone that the Lottery is a tax on people who are really bad at math.

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  8. James Joyner says:

    @OzarkHillbilly: Blackjack is mostly a game of luck, although one can increase one’s odds considerably by counting cards. Poker is a much more of a game of skill—I’d seldom win a hand and never win a pot against a professional caliber player—but even so there’s luck and intuition. Otherwise, two or three great players would win every time they entered a tournament; they don’t.

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  9. SKI says:

    If you don’t understand how poker is a game of skill, you don’t understand poker. There is a reason that top players win consistently. If it is repeatable and the player has control over the outcome, it isn’t luck.

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  10. @OzarkHillbilly:

    And may I remind everyone that the Lottery is a tax on people who are really bad at math.

    Of course, people who say this are really bad at economics (particularly grasping the concept of marginal utility).

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