COLUMBIA, S.C. - A magistrate, not a jury,
should decide whether a video gaming machine seized by law
enforcement is actually illegal, the South Carolina Supreme Court
ruled Monday.
The issue, a new test for the state's ban on video gambling, came
up after the State Law Enforcement Division seized a "Safari Skill"
machine from a sports bar and grill in Berkeley County in January
2004.
A magistrate ruled the machine illegal and ordered it destroyed.
Mims Amusement Co., which owned the machine, demanded that a jury
should decide whether or not the machine was illegal. A circuit
judge overturned the magistrate's decision.
But the high court ruled Mims Amusement has no right to jury
trial in that type of civil forfeiture proceeding.
"The owner's constitutional right to due process of law is
satisfied by a post-seizure hearing before the magistrate," Justice
E.C. Burnett III wrote in the unanimous 5-0 opinion.
If Mims Amusement had won, every time a machine "was seized we'd
have to stop and call in a jury," state Attorney General Henry
McMaster said. "That would be an enormous burden to put on law
enforcement, so much so that the efforts to seize the machines may
have collapsed."
McMaster likened the machines to cocaine and said police can
seize and destroy cocaine "without having a jury trial on the issue
of whether that's cocaine or talcum powder."
Mims Amusement lawyer Jim Griffin said a jury trial would have
been more fair.
Law enforcement takes the machine deemed illegal without
notifying the owner and has a one-sided hearing with a magistrate
and officer, Griffin said. After that hearing, the machine owner is
told of the ruling and where the machine is taken, and then has a
chance to convince the magistrate to change his mind, Griffin said.
"It violates a lot of principles of fair play," Griffin said.
If the machine owner was charged in the criminal possession of a
video gambling device, they would have a right to a jury trial to
determine if it was legal, McMaster said.
South Carolina struggled with video gambling before they were
outlawed after a court challenge in 2000. Since then, the industry
has introduced a number of electronic devices that have tested state
laws. Several of those games have been ruled illegal because of
their similarity to the video gambling machines.
"The video gaming industry in the country is very aggressive and
very creative because there is a lot of money involved," McMaster
said. "The people in the industry are always looking for new
machines, better machines. ... They're hoping they can find a way to
make them legal."
Griffin said the law is not being consistently enforced across
the state. He said some chance games at children's amusement parks
offer coupons for prizes.
"But because it's available for play for children, it's left
alone," Griffin said. "If you were to put that same type of machine
in a bar or restaurant I can assure you that it would be seized and
taken before a magistrate by
sundown."
