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Video game in Nebraska illegal, but will be made legal

A judge has ruled the BankShot machines confiscated by the Nebraska State Patrol after they began popping up in bars last year are illegal as is.

But Lancaster County District Judge Steven Burns' order Monday doesn't necessarily spell the end for the coin-operated machines.

Instead, it provides game makers a road map of how to comply both with the state's constitution and law, something they say they tried to do from the start.

"The configuration programming is already under way in terms of changing the game play," Greater America Distributing attorney Thomas Locher said Tuesday.

He expects games to be in compliance and ready to be played at 5 p.m. Wednesday, the time Burns set for his findings to go into effect.

Last fall, Greater America Distributing, which

distributes BankShot, and American Amusements Co., which makes it, sued the state after the patrol seized two of the games, developed with the intent to replace once-popular Golden Tee machines.

At trial, they argued the game was legal because it is a game of skill.

The state argued it was an illegal gambling device because an element of chance determines the outcome.

In the end, Burns agreed with points on both sides.

He disagreed with the state's assertion a game is prohibited if its outcome is determined by any element of chance.

By that measure, Burns said, games of any nature would be considered gambling if money was paid to play.

Carnival games and gumball machines would have to be removed, he said, and selecting Husker Bowl tickets by lottery with the outcome unknown in advance would not be permissible.

"Such an interpretation is not logical, is not consistent with the gambling statutes and constitutional provisions involving gambling. ... And it just does not meet our common, every day understanding of gambling," Burns said.

But when it came to the BankShot game -- described as a variation on tic-tack-toe in which players try to match lines of pool balls to win a penny per point -- he sided with the state for the most part.

In its slow mode and in bonus games, BankShot is a game of chance, not skill, and doesn't follow the law, Burns said.

When operated in spin mode (despite the odds being stacked against players winning more than they invest) it is a game of skill and follows the law, he said.

Because the law says a gambling device is any device used or usable for gambling, Burns said, BankShot is illegal as configured and programmed now.

But delaying the time his findings take effect gives the makers time to update software and make the games compliant.

Nebraska Attorney General Jon Bruning said he was pleased the court agreed the machines are illegal as currently formatted. He said he expects the machines to be reconfigured or removed by the deadline.

Bruning also said this may not be the end of the matter.

"We respectfully disagree with the Court that certain aspects of the devices are not games of chance. We will explore our options regarding appealing those portions of the Court's decision," he said.

More than 400 BankShot games have been distributed to bars throughout the state.

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