#2008-12 © Copyright 2008, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I Nelson Rose, www.GamblingAndTheLaw.com.

A few weeks ago I wrote a column about Stella Romanski, who turned five cents into a fortune — by suing the casino.

Stella found a nickel token in the MotorCity Casino in Detroit. The casino made the horrible mistake of claiming it owned the nickel and backroomed Stella for an hour. A sympathetic jury and judge decided the casino should be punished.

In the movie “Rat Race,” Duane and Blain Cody, the characters played by Seth Green and Vince Vieluf, walk through a casino blithely playing slot machines with coins they are obviously stealing from a can labeled “Feed The Homeless.”

Now, these are slot-walkers who casino owners would want to arrest.

In most other cases, a casino should probably simply kick out, or ignore, anyone it sees pocketing or playing with coins, tokens or credits accidentally left in slot machines.

Many clients, especially those on the losing sides, think that the Law is nothing more than a game. Unfortunately, they are often right.

But when it is a game, it is played with extremely complicated rules, where even the most innocent-seeming sentence can make the difference between winning and losing.

Take the case of Stella and another slot-walker detained by employees at the MotorCity Casino in Detroit. In Stella’s case, the federal 6th Circuit Court of Appeals imposed punitive damages against the casino of $600,000. In the second case, Lindsey, the Court dismissed the lawsuit, meaning the plaintiffs got nothing.

The different outcome was the result of a small mistake by the lawyer in the Lindsey case, who was only trying to make his claim stronger. His fatal flaw was alleging in his complaint that the casino’s security guards did not have authority under Michigan law to make arrests.

Federal courts do not have the power to hear every case. One type of case they can decide are those involving federal questions, such as the federal statute allowing private citizens to sue for civil rights violations, 42 U.S.C. §1983. This allows any American to sue anyone “acting under color of state law,” who has infringed on the plaintiff’s federal civil rights.

When a police officer wrongfully arrests someone, that person has the right to sue the cop under §1983. But §1983 is limited to defendants who are acting as agents of the state. A casino can be sued under state law for false arrest. But to make a federal case out of it, there has to be what is called “state action.”

A state police officer obviously qualifies as an agent of the state. But courts are split on whether private security guards count.

The 6th Circuit ruled in Stella’s case that the actions of a casino security guard could be “fairly attributable to the state.” The majority reasoned that the guard was fulfilling a “public function,” that would otherwise have to be done by actual state police.

The major factor was that the state had given the guard the power to make arrests on the casino grounds.

And this is exactly what the lawyer for Lindsey expressly denied.

You can see what happened. To make his complaint ring out with the unfairness of it all, the lawyer alleged Lindsey, who had merely found a few tokens, had been dragged off to a backroom by security guards who did not even have the power to make arrests.

Oops.

The lesson here is that pleadings, complaints and answers, still count.

And the lesson for casinos is to never backroom a slot-walker. And let them keep the nickels they find.

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© Copyright 2008. Professor I Nelson Rose is recognized as one of the world’s leading experts on gambling law and is a consultant and expert witness for players, governments and industry. His latest books, Internet Gaming Law and Gaming Law: Cases and Materials, are available through his website, www.GamblingAndTheLaw.com.