Indiana Supreme Court to Hear Card Counting Case

Remember Thomas Donovan? Last year we reported on his efforts to challenge casinos’ policy of banning card counters. In 2006, he was banned from the Grand Victoria casino in Indiana for counting cards, which is a fairly common practice for casinos. Even though counting cards isn’t illegal, the casinos really don’t like it. Donovan admits that he’s a card counter but says that the casino has no right to ban him for doing something that is legal.

Donovan then filed a lawsuit against the casino in a Marion County court. That court ruled in favor of the casino. Then in October of 2009, Donovan filed an appeal in the Indiana Court of Appeals, saying that his ban is unlawful. In November, the Court of Appeals upheld Donovan’s appeal, stating that the casino had no right to ban him for counting cards. The casino then responded, as you might expect, by appealing the appellate court’s decision. They filed an appeal with the Indiana Supreme Court, which is set to hear the case tomorrow.

This is an interesting case and its outcome will send reverberations across the blackjack community. Do casinos have the right to ban people for counting cards if they are not breaking the law? Both sides admittedly seem to have a good argument, so let’s look at both sides.

Donovan points out that counting cards is not illegal in the state of Indiana (which is true) and that neither the state nor that casino has any rules against counting cards while playing blackjack (which may be true; more on that later). In essence, he is arguing that the casino banned him because he was winning, which he says is not a lawful reason for the ban.

The casino points out that they are a privately-run business and therefore they have the right to refuse service to anyone for any reason. That is somewhat true.  I don’t know a whole lot about Indiana’s laws on the subject, but I do know about the federal laws on this matter. The Civil Rights Act makes it illegal to discriminate against certain protected groups. Specifically, it guarantees “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin.”

Clearly, card counters do not fall into any of those protected groups. Courts have generally ruled that a business refusing service is legal if they had a specific interest in refusing that service, but it is unlawful if it is random or arbitrary. For instance, courts have ruled that businesses can refuse service to people who are not in the proper attire, who are unruly or are intoxicated, for example, because banning them could be beneficial to the business. Someone who does not follow the dress code detracts from the atmosphere of the establishment, someone who is unruly can make other customers decide to leave, and intoxicated people can cause all sorts of problems. Therefore, in those examples, those bans are not arbitrary, because the business has a vested interest in refusing their service.

So the question seems to be whether or not the casino has a specific reason for wanting to refuse service to card counters. The answer seems to be yes, because card counters cost them more money than non-counters. But is the fact that a person is costing the business money a legal reason to refuse their service? Courts have ruled that buffet-style restaurants can refuse service to customers who eat too much or waste food. It seems that the casino’s ban on card counters could be an extension of that same principle. So in this way it seems like the law is on the side of the casino.

Or is it? There is another argument in play here and that is that casinos aren’t the same as other private businesses. They are heavily taxed, regulated and supervised by the state. Some argue that because of that, they should be treated more like government-run businesses, which have fewer rights regarding the ability to refuse service. However, though they are taxed and regulated by the government, the casinos in Indiana are not subsidized by the government. They give money to the government, like any other business, but do not take any. Still, because of the heavy state regulation, the courts could choose to see the casinos as only partially private businesses. If they are seen as a public enterprise, then the rules regarding rights to refuse service are different.

I don’t know which side of the argument the state Supreme Court will favor, but they are expected to make a decision later this week. Legal arguments aside, wouldn’t it be nice to use common sense? Blackjack is a game of skill, so if the casinos are willing to offer that game, shouldn’t they accept that some players will be more skilled than others?

And that brings me back to something else that could impact the entire blackjack community. Donovan says that the casino has no rules against counting cards, but what if they did? Putting aside the above “public enterprise” argument for a moment, casinos are private businesses that can make up their own rules, as long as those rules don’t conflict with any existing laws. If you enter a business you have to obey their rules or the business has every right to refuse service to you. Therfore, if the casinos simply came out and clearly stated that, though there is no law against it, they do not allow card counting, couldn’t they legally ban anyone who does it? It seems like it to me, but then again, I majored in psychology, not law.

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