Legality of poker in the District of Columbia

Now that I have played in an underground poker game in the District, I thought maybe I should learn for myself whether I was committing a crime in the process. Oh, sure, some people might check that out in advance, but that's not how I roll.

To the best of my ability to determine, the central statute in operation is this:

DC ST § 22-1704

Division IV. Criminal Law and Procedure and Prisoners.
Title 22. Criminal Offenses and Penalties.

Subtitle I. Criminal Offenses.
Chapter 17.
Gambling.
Subchapter I. General Provisions.

§ 22-1704. Gaming; setting up gaming table; inducing play.

Whoever shall in the District set up or keep any gaming table, or any
house, vessel, or place, on land or water, for the purpose of gaming, or
gambling device commonly called A B C, faro bank, E O, roulette, equality, keno,
thimbles, or little joker, or any kind of gaming table or gambling device
adapted, devised, and designed for the purpose of playing any game of chance for
money or property, or shall induce, entice, and permit any person to bet or play
at or upon any such gaming table or gambling device, or on the side of or
against the keeper thereof, shall be punished by imprisonment for a term of not more than 5 years. For the purposes of this section, the term
"gambling device" shall not include slot machines manufactured before 1952,
intended for exhibition or private use by the owner, and not used for gambling
purposes. The term "slot machine" means a mechanical device, an essential part
of which is a drum or reel which bears an insignia and which when operated may
deliver, as a result of the application of an element of chance, a token, money,
or property, or by operation of which a person may become entitled to receive,
as a result of this application of an element of chance, a token, money, or
property.

The term "gaming table" is further defined in section 22-1707:

All games, devices, or contrivances at which money or any other thing shall
be bet or wagered shall be deemed a gaming table within the meaning of §§ 22-
1704 to 22-1706; and the courts shall construe said sections liberally, so as to
prevent the mischief intended to be guarded against.

Interestingly, as far as I can tell, "gaming" itself is not specifically defined.

Poker is not specifically mentioned in either statute. However, my admittedly superficial analysis is that a court would be hard-pressed not to see it included.* True, one might succeed at convincing a court that poker is not a "game of chance," but is instead a game of skill. However, I wouldn't count on it, based on recent results in other jurisdictions. And even if one succeeded on that count, one would not be out of the woods, because the first part of section 1704 prohibits the keeping "any gaming table...for the purpose of gaming," without regard to the "game of chance" language. With the broad definition of "gaming table" in 1707 to include any game in which anything of value is bet or wagered, I can't see how a poker game could escape.

In doing a quick Google search on the subject, I came across a couple of places where people were claiming that having a poker game in the District is legal as long as there isn't a rake. As far as I can tell, that is just plain wrong. Inviting a couple of friends over for a penny-ante game with no house rake or profit taken, or hosting a poker tournament where all of the entry fees are redistributed back to the players without juice, is just as much a violation of the statute as operating a 24-hour, for-profit, raked game in a low-rent apartment somewhere. Pub tournaments in which the prizes are non-monetary items of some value or bar-tab credits would similarly seem to be prohibited.

Note, too, that all of these examples, being violations of the same statute, constitute felonies, punishable by up to five years in prison. That's right: Invite three friends over to your house for an evening of $0.01-$0.02 limit hold'em, and you're a felon. Makes a lot of sense, doesn't it?

The only way you escape the broad definition is if you run a game only for funsies and bragging rights, with absolutely nothing of monetary value at stake. (My friend Cardgrrl sometimes plays heads-up with a poker buddy here for practice and experience, with just such an arrangement, and that would seem to run afoul of no laws.)

The good news is that it appears that playing poker does not violate the statute. It is the keeping of the gaming table that is the criminal violation.

Using a free web site on case law, I am able to search only the last ten years, but in that interval I find no criminal cases in the D.C. appellate courts in which maintenance of a poker table or establishment has been adjudicated. It is possible that there exists older case law that clarifies or modifies the facial language of the statutes, but if so, I don't know about it.

I also have not yet dug into the status of the law in neighboring Maryland or Virginia. If anybody can point me to a definitive source for such information (i.e., not just "I heard that..."), so that I don't have to figure it out myself, it would be appreciated.


*That language about construing the language "liberally" is part of a trend over the past several decades. Courts have frequently held that criminal statutes must be interpreted narrowly or strictly, so that citizens are on fully fair notice of what is prohibited. That is, if it is ambiguous whether a particular action falls within the scope of the legal proscription, courts are generally supposed to find that the action is not criminal. Not surprisingly, legislatures didn't like this development, so many of them started incorporating language like you see here, directly instructing courts not to implement the so-called "strict construction" or "rule of lenity." But courts in many jurisdictions have simply ignored such mandates, on the grounds that narrow interpretation is a constitutional requirement as part of "due process," and legislatures simply don't have the authority to require otherwise. Courts in some jurisdictions, though, have capitulated. Kind of bizarrely, I had to research this in some depth in conjunction with a legal case I was involved in a few years ago. (No, I wasn't on trial for any criminal accusation, but the question was relevant to a civil case.) I found clear case law favoring the rule of lenity for penal statutes in 11 states (CT, FL, HI, IL, LA, NJ, PA, RI, TN, WA, WV), whereas at least nine state appellate courts have heeded the legislative mandate to the contrary (CA, DE, MI, MT, NH, NY, OR, SD, UT), though not always with great consistency. For others, including DC, I couldn't find clear declarations one way or the other. Fascinating, eh? I'm just chock-full of useless knowledge.

This all probably doesn't matter, though, for the case of poker, because the fact that wagering is involved puts it pretty clearly on the prohibited list, and there isn't much ambiguity for a court to have to try to resolve.