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America’s Pastime a Crime?
Posted September 12th, 2012

BY DIANE DIMOND

The Great American pastime isn’t just one thing, it is lots of things. There is the game of baseball. There’s eating apple pie. And there is poker. It is the card game played by millions of Americans in nearly every community in every state of the union.

The first two activities are perfectly legal — but poker? Well, that depends on where you play the game — at a card table or via the Internet — and the state in which you live.

I have such fond memories of playing poker I can’t imagine why some states still have laws labeling it as illegal gambling. When I was a kid growing up in Albuquerque, N.M., my cash-strapped parents often had friends over for a rousing poker game. They threw modest New Year’s Eve parties where two-bit limit poker games were the centerpiece. After I moved out on my own, playing poker was a fun and inexpensive way to make new friends and interact with colleagues outside work.

Well now, for the very first time, a federal judge in Brooklyn, N.Y., has ruled on the legality of poker and come down squarely on the side of card players. Hooray for Judge Jack Weinstein, who ruled that poker is a game of skill not a game of chance. Therefore, he proclaimed in a lengthy opinion, it cannot be considered illegal gambling. I hope the word spreads far and wide.

Judge Weinstein wrote, “Expert poker players draw on an array of talents, including facility with numbers, knowledge of human psychology, and power of observation and deception.” And, as if equating continued poker playing to on-the-job training, Weinstein pointed out: “Players can use these skills to win, even if chance has not dealt them the better hand. The most skillful professionals earn the same celestial salaries as professional ballplayers.”

Weinstein’s decision stemmed from the case of Lawrence DiCristina, 33, who hosted regular Texas Hold ‘em poker games in a space in Staten Island, N.Y. He was convicted of operating an illegal gambling house because he took 5 percent off the top to cover his expenses (rent, staff salaries, etc.). Weinstein overturned DiCristina’s conviction, saying that the defendant’s activity was simply not covered by the federal anti-gambling law. He added that the nation’s gambling statutes were aimed at organized crime rings, not a mom-and-pop operation like DiCristina’s.

Think of it like another game of skill — chess — where the winner gets to take home an upfront bet. The chess player doesn’t win because they got lucky. They win because they have the experience and expertise to beat their opponent. It’s all about the skill.

Weinstein’s 120 page decision is sure to be quoted in future poker-related legal cases at both the federal and state level, especially now with the boon of Internet play that falls into a legal gray area. Internet sites scream about how perfectly legal they are, but it just isn’t so.

“None of it has been specifically authorized by any level of government,” said John Pappas, executive director of the Poker Player’s Alliance, which boasts more than a million members and is working for uniform laws. “Just like everything else we do … like books and movies, the poker player is turning to the Internet for entertainment in record numbers,” Pappas said.

An attorney involved in the DiCristina case told me that, depending on the state, a citizen’s friendly Friday night poker game could be the target of a police raid. Many of the mish-mash of state laws have never been tested — in New Mexico and Utah, to name two. In Washington state, however, it’s a class 3 felony to wager online — poker or any other game.

Nevada and Delaware are just the opposite. Those states passed laws making it legal for residents to play intra-state poker games once the Internet operator is licensed and taxed. The state of Missouri also expressly recognizes poker as a game of skill but only licenses it for play on riverboats, although at least one location is on dry land and not a boat at all.

For the time being, playing poker in South Carolina is OK — but the state’s Supreme Court is now reviewing a pro-Texas Hold ‘em decision, so that could change.

In Ohio, playing poker is still not considered a skill and is lumped in with other “games of chance” like craps and roulette and declared illegal. (Interestingly, bingo is not included as one of the banned games.) See what I mean about a mish-mash of different laws?

California seems to be the prototype for what the Poker Player’s Alliance would like to see. There are huge card clubs there that are licensed and regulated, and bring in much-needed tax dollars for the state. Operators and customers are happy, and the state can rely on a steady stream of income.

Lawmakers need to get anti-gambling laws out of the 19th century where they were first conceived. A great first step would be to pass The Internet Poker Act for Americans (H.R. 2366), which is currently pending in the House of Representatives and allows states to opt out if they want.

The bill was introduced by Rep. Joe Barton of Texas, who says, “To put it simply, this bill is about having the personal freedom to play a skill-based game you enjoy without fear of breaking the law.”

Sounds like an all-around win-win to me.

Rockland resident Diane Dimond is a syndicated columnist, author, regular guest on TV news programs, and correspondent for Newsweek/Daily Beast. Visit her at www.DianeDimond.net or reach her via email Diane@DianeDimond.net.

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