A statewide battle over whether some gaming machines assumed illegal by authorities do not violate the state’s ban on video gambling has made its way to York County.

Two lawsuits filed against Sheriff Bruce Bryant and Marvin Brown, the commander of a countywide drug enforcement unit, challenge recent police actions against the owners and operators of such machines.

In one lawsuit, video game company GM Co. claims officers with York County’s Multi-Jurisdictional Drug Enforcement Unit confiscated four of its Palmetto Gold machines from two York County businesses despite knowing a judge had declared them legal.

In another, a Rock Hill business owner on Porter Road alleges Brown and deputies came in and threatened arrest in an attempt to stop him from operating the machines, which had been declared legal.

“Unless you’ve got probable cause to believe that somebody’s done something wrong, you don’t have the right to seize his property” or threaten prosecution, said Jahue Moore, a Columbia attorney representing both plaintiffs.

“The question then becomes, what conceivable fact did you have that these machines were operated any differently than the ones that had been already ruled upon as legal?”

Brown and Bryant reject the allegations, saying that in confiscating the machines the officers were following the lead of the State Law Enforcement Division and the state attorney general’s office, which told them the Palmetto Golds were illegal.

The lawsuits are among many in a statewide battle between the gaming industry and law enforcement and prosecutors over the legality of gaming devices.

The state outlawed video poker in 2000, shutting down a nearly $3 billion industry. But in recent years, the video gaming industry has introduced new machines and is challenging authorities when they seize them, claiming the machines are legal.

The difficulty of defining the difference between legal games and illegal gambling machines also complicates matters.

While state law prohibits any slot machines or coin-operated devices “pertaining to games of chance,” the law allows skill-based games – a definition Moore applies to the Palmetto Gold machines and police reject.

Proponents of another type of video gaming machine offering sweepstakes or products say they’re also legal under a section of state law that allows beer and wine permit holders to offer games of chance. The games must be offered in connection to the sale of a product or sweepstakes, the rules must be clearly advertised and offer free participation.

But while gaming interests say the exception allows for their machines, police and a state prosecutor say Moore and other advocates of the gaming industry are misreading the law.

The exception for beer and wine permit holders, which says nothing about gaming machines, doesn’t negate the ban on video gambling and make the machines legal, said state assistant attorney general Jared Libet. It’s intent is to allow, for example, a soft-drink company to offer a bottle cap promotion or sweepstakes.

Adding to confusion is the process police must go through to determine whether a machine is illegal.

The state Supreme Court says each machine must be judged on an individual basis. And because machine operators can modify games to offer different types of play, even a machine that has been seized and declared legal could be changed into an illegal machine.

That means law enforcement officers are free to seize any suspicious machine.

Once seized, the machine must be brought before a magistrate “at once” to determine whether it’s illegal, state law says. At the request of the machine’s owner, the judge then hears arguments about the machine’s legality. That hearing provides the defendant an opportunity to challenge the seizure.

Having magistrates rule on a machine-by-machine basis has led to an often inconsistent hashing out of the law in lower courts across the state, which, in turn, has led to confusion about what machines are legal.

Inconsistent rulings

The process of seizing machines first and ruling on them later isn’t fair to business owners who are trying to operate lawfully, Moore says. If they have a machine they believe is legal, they have no way of checking with law enforcement before risking seizure and prosecution.

In York County, two magistrates have ordered in post-seizure hearings that Palmetto Golds be returned to their owners, including Magistrate Robert Davenport in a 2009 hearing on Palmetto Gold machines. Moore represented the defendant in that case, too, and is leaning on those rulings to build his cases against Bryant and Brown.

Davenport ruled the machine was a game of skill based on the testimony in court that day, despite pleas from the prosecution that the game met all the criteria of an illegal gambling machine under state law – it must require consideration, chance and a reward or payoff.

According to a transcript of the hearing, Davenport would not allow a witness for the state, a SLED agent who claimed experience working with the Palmetto Gold machines, to testify as an expert on the machine.

The judge did allow testimony from the local law enforcement officer who, on advice from the SLED agent, seized a machine, and a man who said he designed the Palmetto Gold machine. The man said the machine was a game of skill, not a game of chance.

In an interview with The Herald, Davenport said magistrates can only consider the evidence and arguments presented in the courtroom at the time of the post-seizure hearing and nothing else – including orders from other jurisdictions. He would not comment on his ruling on the machines.

In January, another York County magistrate ordered four Palmetto Gold machines returned to Gold Strike Bingo Parlor in Rock Hill after hearing testimony that the machines were not gambling machines and finding that nobody was playing the games when they were seized.

The state has appealed that order to Circuit Court.

The problem with the ruling, Libet said, is the court placed the burden of proving the machines illegal on the state, when it should be on the machine’s owners to prove they are legal.

Skill or chance?

Confusion comes even from defining machines in terms of the law as illustrated in Moore’s and Libet’s disagreement over the legality of the Palmetto Gold machine.

How it works:

• The game, billed as “a skill-based redemption game,” accepts bills up to $100.

• The money is converted into points or credits, which the player wagers before playing.

• The game is like tic-tac-toe, except instead of Xs and Os, there are different icons of varying values including turkeys, palmetto trees, fish, suns, and silhouettes of South Carolina.

• The player gets a wild card and places it in the puzzle to complete a line with the matching icons to earn points.

Moore argued in Davenport’s court that the game involves skill because the player can see what icons pop up before playing and decide not to play.

But Libet disagrees.

“We believe that’s a game of chance because you have absolutely no control over what symbols it gives you, and they range in value,” Libet said. “The reason people continue to play this game is taking the chance that the board will give you high value symbols.

“Very rarely does it give you profitable boards.”

When done, the player can print out a voucher ticket and submit it for payout or reimbursement of what remained of what he put in the machine, he said.

Claims of intimidation

In the lawsuit against Brown and Bryant, the owner of a business on Porter Road in Rock Hill says Brown and sheriff’s deputies came into his business where he was operating two Palmetto Gold machines and “maligned the machines; called them illegal,” threatened arrest and “conducted themselves in a very high-handed fashion” to “chill” the business owner’s rights to operate the machines lawfully.

Brown said he did go to the business to warn the owner that SLED was making a list of all the places in York County with machines. SLED had instructed Brown and his officers that the machines were illegal.

Brown disagrees that he came in “like gangbusters” to intimidate the business owner.

The way the system works now, Moore says, business owners can’t operate machines they think are legal because there’s no way to get pre-clearance from law enforcement on whether a machine is legal.

Business owners have no option but to “risk arrest, risk confiscation, risk being written up in the newspaper, risk seizure,” he said.

Libet dismissed the idea that gaming machine operators are trying to obey the law.

“There really aren’t that many kinds of machines, and we’ve had cases on all the kinds,” he said. “I don’t see how anyone would have a question about” whether they’re legal.

Claiming ignorance of the law should not allow business owners to ignore it, he said.

Police say they’re the ones on the defensive due to the gambling industry’s attacks.

Brown contends that the lawsuits are an “attempt to intimidate law enforcement,” which is acting in concert with SLED and the attorney general.

The lawsuits “are trying to make us stop enforcing the law,” said Kristie Jordan, an attorney with the York County Sheriff’s Office. “All of these machines are to be tested on a machine-by-machine basis. That’s the state of the law.”

“We've been dealing with this poker industry for years,” said Bryant, who called it “frustrating.”

“There are so many discussions at conferences and conventions and law enforcement monthly meetings. If we have questions, we contact the attorney general's office, or if we have information, we turn it over to SLED, and vice versa. We're all working this together.”

Brown hopes more video gaming machine cases go to higher courts, but he’s looking for another solution in the meantime:

“I wish lawmakers would come together and come up with something very clear and precise that everybody can live with.”

Jamie Self 803-329-4062