Legal Musings: Communist Candyland

If you whack a game by hole-carding, the casino will stiff you and then get the DA to intimidate you. The DAs are happy to be the minions of the casino, and the casino no doubt refers to the entire DA’s office as “staff.” So the DA, who’s never heard of a hole card in his life, will come in and say, “Aha!” Then there will be a pause because he’s not sure what he’s aha-ing. Then, he will accuse you of cheating because you “used information not available to others at the table.”

They got this vague wording by copying the Vegas statutes, since they were too lazy or inexperienced to write their own statutes for the burgeoning new gaming industry. Hey, legislators, if you were too lazy to write a good statute, then you should just accept the consequences that the vagueness will lead to the exoneration of bad, bad, bad players that you don’t like (you know, … APs). If, on the other hand, you plagiarized the statute because you thought that the wording was perfect, and you agreed with the more experienced Nevada legislative system, then you should also agree with the legislative history, judicial rulings, and case-law surrounding that statute. That is, you’re using Vegas’s statute verbatim, so you should also defer to the Sheriff vs. Einbinder/Dalben ruling that says that hole-carding is legal, even when done with a spotter at the table.

IANAL, but I believe that the law was trying to prevent two activities, the first being collusion in live poker, where many players gang up on the unsuspecting mark. The reality is that legal variations of “collusion” occur all the time that give the regular pros in Vegas poker rooms an advantage over the tourist (visualize the guys in Rounders who sit down wearing their convention badges). The other activity is collusion between a dealer and a player in order to steal money from the casino. I consider that type of arrangement to be more akin to robbing a bank or embezzling. That isn’t even gambling—that’s just taking the chips. Those guys don’t miss. A bank robber never comes out of the bank with less money than he went in with.

The smell test when it comes to legal hole-card players who scout to find beatable dealers is: do these guys have losing sessions? Absolutely! And how many days do we go into a casino only to find the dealer on the wrong table, or at a full table, or just not flashing the card as much as we hoped? Common, all too common.

What’s amusing is how these cops (like the cop who informed Justin Mills that card counting is illegal in Maryland!) and DAs pick and choose whatever they need for the moment. So first they copy the Nevada statute verbatim, because they need something fast to start offering gambling. Then they ignore the Einbinder-Dalben context. Then they invoke the live-poker-collusion context when they vilify you. They say, “you’re using information not available to others!” as if our activity is somehow victimizing these “others” and that the DA is trying to protect these “others.” Look, dude, this ain’t live poker. I’m winning money from the casino, which doesn’t at all affect the chance for the “others”—gamblers—to win.

But let’s get to that statute. “Not available to others”—what does that mean? It means that if Sam Lau has an arrangement with a dealer who flashes the card to him, then that’s illegal, because if I walk in and play that dealer, I don’t get that flash. What about the legal AP? How is he cheating? The DA argues (when he’s trying to recover the money the casino lost to the AP) that you saw the card, and had that information, and you’re cheating since no one else had that information.

This argument is so idiotic that it makes me wonder whether DAs are colossally stupid, or colossally corrupt. First of all, we have to decide what “information” is covered by the statute. Does the temporal dimension of the information matter? Suppose I count down a 6-deck blackjack shoe starting from the beginning. Another counter walks up and he missed the first two decks but he sits down and plays anyway. We have an opportunity to buy insurance, and I buy it since the count is exactly +23. He does not buy insurance, because he didn’t see the small cards that came out in the first two decks. So am I cheating when I buy insurance? By the DA’s interpretation, did I not just use information not available to others at the table on that hand?

What about games where players have their own hole cards, and thus asymmetric information? What if the same blackjack game were a pitch game, and I buy insurance knowing that I hold 64 v. Ace. The other counter does not buy insurance on his T5 v. Ace. I knew that my 64 raised the count beyond the critical index. By not showing the other guy my 64, am I cheating? In fact, some casinos say that you’re not allowed to show each other your cards, but then aren’t we all cheating? Because each one of us then has information not available to others at the table. So a legal game would have to be dealt face-up then? Should live poker be dealt face-up, so that everyone has the same information?

What about the temporal dimension within the hand, relative to the seating position? I’m sitting at third base, and the other counter is at first base. We both counted down the shoe from the beginning, and we both are dealt 16 v. T up. He hits his 16 and pulls a 5 for 21. I now stand on my 16. Did I just cheat? I used information (I saw the 5 that was just dealt to him as a hit card) in playing my hand that he didn’t have when he played his hand.

What about other information? What if I spent a month researching a game and devised a special strategy chart. I use that information whenever I play. Am I cheating?

The basic philosophy that answers all of the above examples is the American Dream. We are not Communists. We are not trying to provide equality of outcome, but rather equality of opportunity. Everyone had the opportunity to create that strategy chart. The fact that I was the only one who put in the work doesn’t dis-entitle me to its benefits. Everyone had the opportunity to arrive at the table and count down the shoe from the beginning. Everyone had the opportunity to sit at third base so that they could see all the hit cards each round. And the particular hole cards you get in a poker or blackjack pitch game could have gone to anyone. The table presents equal opportunity to anyone off the street.

So the fact that the hole card is visible only to a certain seat does not disqualify its benefits to the person who chooses to sit there—it is an open, first-come-first-served seating policy. The seat issue is a red herring anyway. There are games where the hole card is literally visible to every seat at the table. It is also true that there are old people who can’t even see the dealer’s upcard in blackjack, and politely ask you to tell them what it is. So what if I am sitting in the center of a table on a blatant flash game with five old people who can’t see well. So they don’t have the information. So now I’m a criminal because I have normal eyesight?

Taking that scenario further, if the illegality comes from the information not being “available” to the old people, would it then be legal as long as I tell them all what the hole card is? So the solution would be for me to share! Just like the 1st-grade teacher who catches my kid with candy and says, “Did you bring enough for everyone to share?” Well if that’s truly your objection, then yes, tomorrow my kid will have a solution to this problem, and we’ll all be Communists in Candyland!

Now in fact, our signals are either clearly visible hand signals, or clearly audible verbal signals. So indeed everyone at the table can see and hear what my BP sees and hears. So what information, precisely, is not available to others? Also, what if I don’t tell my BP the hole card? In practice, the BP might not even know what the hole card is, because we usually just signal play-by-play what my “advice” is for playing the hand. What if I advise every player at the table? My BP follows my advice not because he knows the hole card, but because he knows that I know the hole card. The civilians ignore my advice (I tell them, “I’d split those deuces!”), because they don’t know that I’m getting the hole card. So now the DA is saying that it’s a crime to know that someone else is getting the hole card?

Sometimes I miss the hole card, and I signal my BP how to play a hand based on other information. He follows my advice, because he knows I wrote a book on playing some of these games. The other players don’t have that information, and they ignore my advice, because they think I’m an idiot. So my BP is a criminal because he knows I’m not an idiot?

The casino will try to make you look like a criminal because you are using “surreptitious” signals. Newsflash: card counters also use surreptitious signals. There is nothing illegal about counting cards, but the counters don’t want to get picked off by the casino, duh! In the same vein, we use surreptitious code words to gossip about cute dealers in front of their face. Apparently that is illegal!

The casino’s legal people introduce other red herrings as well. They’ll come up with some twist where if you happen to see the card occasionally, that’s OK, but if you’re systematically scouting for dealers and then seeing the hole card every hand, that’s illegal. So, let me get this straight. If I am randomly dropped into an electronics store, and buy two of the cheapest laptop in there, that’s legal, but if I do online research, find the best deal, then drive 40 miles to Best Buy, then another 20 miles to another location because the first location was out of stock, then that’s illegal?

So if your tennis opponent has a weak backhand, it’s OK to randomly hit it there, but if you systematically hit it to your opponent’s backhand every time, then that’s cheating. It’s hilarious, because the DA will start to put bad connotations on words that used to be a good thing. For instance, they’ll say you tried to “take advantage” of a casino or dealer. And they’ll say it with disdain like “taking advantage” is the worst thing you could do in life. If I recall correctly, I’ve heard some non-casino ads actually say, “Take advantage of our low prices!” Sure, why not?

So you’re scum if you always double 10 v. 5 up, because then you’re systematically trying to “take advantage.” But if you randomly happen to double 10 v. 5, then that’s OK. I think if a casino sends random show tickets to Leslie, then that’s OK, but if they systematically determine that Leslie likes the Beatles and has free time in August (because Leslie is a school teacher), then it should be illegal for the casino to offer any comp package that includes mid-week rooms and Love tickets, because that would be taking advantage of Leslie. Call me a conspiracy theorist, but I think that Harrah’s is systematically using its Total Rewards program to take advantage of people, with the goal of maximizing profit. Isn’t that illegal?

I’ve also noticed that casinos offer alcohol. They seem to be “taking advantage” of the human tendency to make foolish decisions while drunk.

In the end, there seem to be only two camps that any reasonable person could fall into: (1) There is nothing wrong at all with the activity of systematic hole-carding, (2) Even if you thought the activity should be legally restricted, trying to do so using a strictest interpretation of the statute would lead to so many nonsensical contradictions that the statute must be considered unconstitutionally vague. The experienced Nevada system has already chosen the former school of thought, but either should exonerate a player who is accused of “taking advantage” of a flashing dealer.