State takes bar game to high court

The Nebraska Attorney General's Office is taking its case against a barroom jackpot video game to the State Supreme Court, seeking to have the machines declared illegal.

The office is appealing a Lancaster County District Court decision that declared that while two of the ways the Bank Shot game can be played are illegal, the video game is legal when played under a third mode.

The game, developed by American Amusements Co.'s John Fox, is a complex variation of tic-tac-toe, with the nine places on the video "board" containing billiard balls of various numbers and colors. The object is to get three like pool balls — either by number or color — in a row. Different numbers and colors are awarded different values and, therefore, different payouts.

The legal fight over the video game began shortly after it was distributed in 2008, following consultation with the Nebraska State Patrol on its legality. Some state officials questioned whether the machines were legal, and in 2010, the Nebraska State Patrol confiscated one of the games from a McCook? bar.

American Amusements and the game's distributor, Greater American Distributing Co., sued and sought a restraining order against Attorney General Jon Bruning, the State Patrol and other agencies to keep them from taking more video games.

In a ruling last year, District Court Judge Steven Burns noted that Nebraska law bans jackpot games where the outcome predominantly is determined by the element of chance. He found that, played in "spin" mode, the game is one of skill, but in "slow" and "fast" modes, it is a game of chance. Jackpot payouts can be as high as $12,000.

After the lower court ruling, Greater America Distributing said it would reprogram the game to comply with the ruling.

In its appeal, the Nebraska Attorney General's Office said it wants all modes of the game to be deemed illegal, arguing that state law bans games if there is any element of chance in its outcome. It is asking the state's high court to direct that the nearly 500 games around the state be removed.

Thomas Locher, an Omaha attorney for Greater American Distributing, counters that the state's interpretation of the element of chance in state law is absurdly narrow.

If state law "requires only that a game involve an element of chance, then every game at the State Fair in which a player throws a dart at a balloon, a bean bag at a bowling pin or shoots water into a clown's mouth is an illegal gambling device because chance — such as a gust of wind, a distracting bug, a faulty dart, a wet bean bag — is involved in each of these games," Locher wrote. The Nebraska Supreme Court is set to hear arguments Sept. 7.

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