Neb. firm: Video jackpot game legal, stop seizures

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LINCOLN, Neb. -- The bickering over whether a new barroom video game sweeping across Nebraska amounts to illegal gambling or a legal game of skill has erupted into a full-blown bar fight.

State investigators confiscated two Bank Shot games and ticketed the bar owner last week in McCook?. That prompted the Bellevue-based creator of the game to ask a judge for a restraining order against Attorney General Jon Bruning, the State Patrol and other agencies to keep them from taking more.

American Amusements' motion filed Thursday also asks Lancaster County District Court to declare the games legal. The company argues that state officials "have abused their authority" by confiscating some of the games.

Under state law, illegal gambling machines are those where the outcome predominantly is determined by the element of chance. The companies argue that the video games require skill.

The games have jackpots as high as $12,000 and are distributed only in Nebraska. About 450 games are operating in 150 cities across the state.

Bruning's office and patrol officials declined comment Friday, saying only that the games were under investigation.

But the game seizures in McCook? suggest law enforcement officials may have formed an opinion. The bar owner was ticketed for possessing an illegal gambling device, said American Amusements official John Fox.

State Patrol investigator Maj. Mark Funkhouser has said tests on two Bank Shot machines confiscated at Fonner Park racetrack and keno parlor in Grand Island earlier this year were inconclusive about whether the games required skill.

Fox disputed those claims. He said an official with Ohio-based eclipse Compliance Testing, one of the firms that did the state testing and later tests for American Amusements, told him the tests showed the game was one of skill. He said an official at the other testing company told him the game may be one primarily requiring skill.

The state wouldn't provide the test results, Fox said.

"At the end of the day, those tests will be made public," Fox said.

American Amusements had Compliance Testing test the games again, and a June letter from the company said the "game outcome is based upon the player's skill and acumen."

"We're stymied and befuddled," Fox said. "As our complaint says, this game was determined to be legal by an independent lab, which determined it to be a game of skill."

In late July, according to Thursday's court motion, the State Patrol asked that two more machines be made available for testing.

American Amusements and its distributor "offered to cooperate with the additional testing if the State Patrol would provide the results of the earlier tests. ... The State Patrol did not respond to the plaintiffs," the court motion said.

The machines were confiscated in McCook? about a month later.

The court motion said state officials have threatened to seize all the games across the state. Fox said Bruning's office has agreed not to confiscate any more games for 10 days.