#136 © Copyright 2007, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I Nelson Rose, www.GamblingAndTheLaw.com

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, it is probably best to simply kick out, or ignore, anyone you see 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 two decisions from the same court, both involving slot-walkers detained by employees at the MotorCity Casino in Detroit. In the first case, Romanski, the federal 6th Circuit Court of Appeals imposed punitive damages against the casino of $600,000. In the second case, Lindsey, decided this May, 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.

There was no significant difference in the facts. Romanski involved a patron, Stella Romanski, who on August 7, 2001, found a nickel token in a slot machine tray. Stella was apparently quite a character. Although her lawyer portrayed her as a sweet, innocent, injured grandmother, the casino’s security officers testified, under oath, that she was loud, hostile and “even belligerent.” The first security officer at the scene explained the casino’s policy that money left in a slot machine tray belonged to the player who won the money or, if no one claimed it, to the casino. Stella was making such a scene that the guards got her off the floor. She was taken to a locked room and was told to leave the casino and not return.

Lindsey involved Brenda Lindsey and at least six other patrons, who were detained and booted out at about the same time and in the same way as Stella. The lawyer who drew up the complaint admitted that each had taken tokens or used credits on unattended slot machines, just like Stella. They were then “forced to accompany Defendant’s security personnel to a locked detention room.”

In both cases, the patrons’ lawyers sued the casino, alleging violations of federal civil rights.

In Romanski, the trial judge let the case go to a jury. The jury awarded Stella $9.00 for her bus trip and lunch, $270.00 for compensatory damages for being detained, and $850,000.00 in punitive damages. And five cents for the nickel token the casino took from her.

The 6th Circuit upheld the verdict, although reducing the punitives to $600,000.

In Lindsey, the trial judge granted the casino’s motion for summary judgment, throwing out the patrons’ claims. The Sixth Circuit affirmed.

Most non-lawyers do not know that federal courts do not have the power to hear every case. One type of case federal courts can decide are those involving federal questions, such as when a federal statute expressly creates a cause of action.

The most important federal statute allowing private citizens to sue for civil rights violations is 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. Obviously, not everyone who is found not guilty can then file a lawsuit. The arrest has to be without probable cause.

The casino was “arresting,” that is detaining, slot-walkers on the grounds that these patrons were taking the casino’s money. The problem is that under Michigan law, the first person who finds abandoned property has superior title to everyone else, except the actual owner. Put more simply, finders-keepers really is the law.

So, slot-walkers can keep the coins, tokens and credits they find. And they cannot be arrested.

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.

In a split decision, the 6th Circuit ruled in Romanski 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 have been 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. The lawyer thought he had a dandy case with Brenda Lindsey and the others. In fact, he tried to make it into a class action (which the court would not allow). To make his complaint ring out with the unfairness of it all, he alleged that these patrons, who had merely found a few coins, tokens or credits, had been dragged off to a backroom, wrongfully arrested, by security guards who did not even have the power to make arrests.

Oops.

There are a lot of lawyers who believe the trial is everything. 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 quarters they find.

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© Copyright 2007. Professor I Nelson Rose is recognized as one of the world’s leading experts on gambling law. His latest books, Internet Gaming Law and Gaming Law: Cases and Materials, are available through his website, www.GamblingAndTheLaw.com.