The state Supreme Court on Monday rejected a new legal strategy
by the video gaming industry that police said would have hamstrung
seizures of machines they suspect are illegal.
A unanimous court ruled that owners of the sophisticated
electronic devices are not entitled to a jury trial to determine
whether a confiscated machine is a game of skill, which would make
it legal.
Had the court ruled for the gaming industry, police would have
been placed in “slow motion” and a return to video poker likely
would have occurred, Attorney General Henry McMaster said.
The attorney general’s office argued the case for the State Law
Enforcement Division against Mims Amusement Co. of Charleston
County.
The attorney for Mims, Jim Griffin of Columbia, said the ruling
will encourage police to shop for judges who might rule in their
favor.
This is the first video gaming case to raise the legal issue that
machine owners are entitled by the Constitution to jury trials on
each seized device.
Mims appealed after SLED seized one of its Safari Skill video
games in January 2004.
The ruling, written by Associate Justice E.C. Burnett, said
machines are presumed illegal at the time of seizure. Therefore,
they are like a roulette wheel or illicit drugs — they have no legal
use.
Unlike other property that is legal but put to an illegal use —
such as a vehicle used as a getaway car in a crime — video gaming
machines have no such protection, the court said.
“While a machine ultimately may be shown to be lawful in a
post-seizure hearing before a magistrate, it is nevertheless deemed
contraband per se at the moment of seizure,” Burnett wrote.
The court decided that an owner’s due process and property rights
are met “when he is given a post-seizure hearing ... with the right
to appeal that ruling to the circuit and appellate courts.”
Since video poker was outlawed in mid-2000, SLED agents have
seized about 3,500 machines the gaming industry marketed as
replacements, according to SLED’s tally.
Chief Robert Stewart said he views the ruling as a victory for
police. It allows police to treat video gaming machines like
“moonshine alcohol or illegal drugs.”
“When you seize cocaine, there is no legal proceeding to get it
back,” Stewart said. “This is just another skirmish in the
continuing battle with illegal gambling.”
Griffin, Mims’ lawyer, said the ruling leaves the state subject
to inconsistent findings.
For example, Griffin said, two Berkeley County magistrates
reached conflicting rulings on Safari Skill machines — one finding
the game legal, the other, illegal.
“You have a smorgasbord of one-shot rulings,” he said.
“The industry would prefer some measure of uniformity of the law
as applied across the board and the certainty of what’s legal and
what’s not.
“In actuality, what this does,” Griffin said of the justices’
ruling, “is encourage judge shopping. The state is likely to take a
machine to a magistrate who has ruled its way in the past.”
Reach LeBlanc at (803) 771-8664 or cleblanc@thestate.com.
