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Professional gamblers have begun to win lawsuits against casinos for physical abuse, false arrest and confiscation of chips. This change in jury attitudes and legal precedents means that backrooming and false arrest are suddenly no longer viable casino countermeasures when they discover a professional gambler at their tables.

INTERVIEW WITH BOB NERSESIAN: FIGHTING CASINO ABUSE OF PROFESSIONAL GAMBLERS IN THE NEVADA COURTS



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A Nevada Court Victory for Counters By Robert A. Loeb, Attorney at Law
Missouri Outlaws Barring, Institutes Countermeasures By Robert A. Loeb, Attorney at Law
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Fake I.D.: A Consumer's Guide By Arnold Snyder
Phony I.D. = Real Risk By Andrew S. Blumen, Attorney At Law
Blackjack Computers, Your Ticket to the Big House (Part I) By Thomas B. Duffy, Attorney At Law
Blackjack Computers, Your Ticket to the Big House (Part II) By Thomas B. Duffy, Attorney At Law
Is Spooking Legal? By Arnold Snyder (with commentary by Stephen R. Minagil, Attorney at Law)
Nevada Attorney Interviewed By Arnold Snyder
What To Do If You Are Barred By Robert A. Loeb, Attorney At Law
Is Card Counting Legal? By Arnold Snyder

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INTERVIEW WITH BOB NERSESIAN: FIGHTING CASINO ABUSE OF PROFESSIONAL GAMBLERS IN THE NEVADA COURTS
By RWM
(From Blackjack Forum XXII #4, Winter 2002/03)
© Blackjack Forum 2003

(Bob Nersesian is a partner in the Las Vegas law firm of Nersesian & Sankiewicz. He specializes in representing players in lawsuits against casinos.)

RWM: Why is it that attorneys don’t want to take cases in which card counters have been manhandled by casinos?

Nersesian: Number one, there isn’t enough money in those cases. Number two, and this is really bizarre to me, people in our community don’t understand that the casinos are invading someone’s rights when a card counter is back roomed or handcuffed. I can’t tell you how many times I’ve talked with other attorneys about this stuff and the reaction I get is: “Well for god sakes, he was counting cards. What do you expect them to do?” My answer is, “I expect them to follow the law, not falsely imprison the guy, not hold him out there and walk him through the casino and embarrass him in front of the world.” The law says that if they suspect him of a felony or if he is suspected of committing a misdemeanor on premises, they can detain him. It does not say they can detain him because he is winning, and that is what they are doing. The public accepts that, and most of the lawyers do, too. Across this country professional gamblers are vilified as far as perceptions are concerned. What we are faced with is a private company who says, “We don’t like what you’re doing. You’re hurting us, so we are going to get back at you.”

The general perspective when I approach other lawyers and upper management of casinos about counters being handcuffed, which does occur regularly, they are as aghast as I am. The policy has been changed, and been put out in writing at some properties, after lawsuits that I’ve been involved in.

RWM: That’s good to hear.

Nersesian: They know they can’t do that. I’m giving the upper management some credit here. It’s the way business works. They put out a dictate that says, “We’re supposed to make money.” Then you get down to the functionary level where they don’t deal with management decisions or the overall policy decisions. They just get the directive, “Your job is to make sure we make money.” They don’t know the ins and outs and niceties about it. The next thing you know they are handcuffing honest people. When the upper management finds out about that, they are pretty straightforward about changing their policies and seeing that it doesn’t happen again. Historically, few lawyers have been willing to sue, and nothing happens because of it. The casino management isn’t even aware there is a problem.

RWM: What is a case worth when a card counter is handcuffed and maybe pushed around?

Nersesian: I don’t want to put down hard numbers, but the patron generally walks away with $5,000 - $15,000. That is provided all the i’s are dotted and t’s are crossed. What I mean by that is there aren’t other reasons for what happened. The story that comes from my client in the first place is very rarely the story that you can see from the facts once things develop. For example, someone might assume they were back roomed for card counting, when in actuality they were back roomed because the casino suspects them of using a counting device. If that is the suspicion, and it’s arguably supportable, the detention can be found appropriate. There are usually videos of that back room, and the cases where I have been successful usually show the casino security lambasting my client and stating, “We saw you in the book. We know you’re a card counter. We don’t want your business.” The client is calmly standing there saying, “I told you outside that I didn’t want to come back here. Put away that camera. You are not going to take my picture. You have no business holding me here. You can ask me to leave. You could have done that out in the casino. Let me out right now.”

RWM: Is that what someone should do if detained?

Nersesian: First inform them firmly, but not physically, that you have no desire to accompany them anywhere.

RWM: Should you attempt to walk to the door?

Nersesian: Your call. I’ve had it both ways. Firmly state, “If you want to throw me out, tell me I’m 86’ed or trespass me. Do it now and do it quickly, because I intend to walk out that door.” If they say, “You’re not going,” or “You have to come with us,” don’t fight them, because they may beat the living daylights out of you. Do I want to see that kind of lawsuit? Not really. You get hurt on those. If they have determined that they are taking you to the back room, they will probably do whatever it takes to restrain you. Your firm statement that you desire to leave and they should not take you back there is all that is needed.

RWM: Unfortunately, the surveillance tapes don’t have audio.

Nersesian: No, they don’t. Once you get in the security office, say it again. That room is recorded with audio.

I want to give you an example of the way the attorneys here look at this stuff. I have a case going to trial on the 23rd. I’m suing a Gaming agent for what he did to a card counter. The court originally dismissed the action. This card counter spent a whole night in jail. He didn’t do anything illegal. When the court dismissed it, I had to go to the Circuit Court of Appeals in San Francisco, and that court reversed the dismissal. Now we have a judgment of liability. I am $80,000 into this case. What do my friends who are lawyers think when I describe the events to them? The guy spent a night in jail. He has never been arrested in his life. He is a wonderful father of two. The question to me is, “What was he doing?” He was counting cards. When I ask them what they think it is worth, they tell me, maybe $2,000. I ask, “Why only $2,000?” I was talking to two lawyers just yesterday and they said, “Because he was a card counter.” I said, “So, that’s legal.” They said, “It might be legal but it doesn’t garner any sympathy.” There might be some truth to that. I don’t think it’s a $2,000 case. If it ends up being a $2,000 case, so be it. I still proved my point.

RWM: What was their excuse for keeping him in jail?

Nersesian: He was actually arrested because he refused to give this cop his name.

At the same time I am trying to sue six other Gaming agents. The courts keep throwing them out. I’m going to take these cases to the Nevada Supreme Court. If that doesn’t work, I will try for the United States Supreme Court. I can’t believe what these police officers think they are allowed to do. In one instance, and this one blows my mind, I have a client who plays video poker. He found a machine that had an edge and he played the heck out of it. It turned out the machine was misprogrammed. After he won on the machine, two police officers held him in custody for well over an hour and a half, and repeatedly requested that he return the money before he could leave, or alternatively go to jail. He did not do anything illegal. Here you have the Nevada State Police acting as collection agents for casinos. Isn’t that special?

RWM: Nevada is a very special place.

Nersesian: That one will be going to the Supreme Court for darn sure. Are they going to confirm the court throwing it out? They might. But I have been very impressed with the Gaming Control Board itself and the Supreme Court on gaming issues. Those three guys who make the big decisions. Or, the Nevada Supreme Court. The games tend to go out the window, and they are very judicious, both the Board, and the Supreme Court, about applying the law.

RWM: Really?

Nersesian: Yes. You hear people say that they are rubber stamps for the casinos—not true. From what I can see, at the agent level, those guys seem to have a perspective that they’re working for the casinos. However, the Supreme Court and the Gaming Control Board seem very guarded about their perspective, and that they are working for Nevada. That includes the taxpayers and the people who play in the casinos, as well as the properties.

You might be familiar with another case I handled, which happened at another casino. There was a programming error on a 50-cent video poker machine. A progressive jackpot for four of a kind, which would normally pay $250, instead paid $100,000. My client hit it. A Gaming agent, in a throwaway off-the-cuff opinion, effectively stated, “There is no liability here on behalf of the casino. The patron loses.” The Gaming Control Board unanimously held that the casino had to pay. You see the distinction? The Board recognizes that the integrity of our system is reliant upon expectations being met. That sure was no rubber stamp decision for the casino.

RWM: If it were a PPE [Park Place Entertainment] or MGM/Mirage property, do you think the decision would have been the same?

Nersesian: Yes, in my opinion that would not make a difference. You see some similarities in this case with the other slot case where the agents held him and tried to get him to give back the money. One thing that is most curious is the video of that incident. The police officers were citing the Nevada tax base, and implying that injury to that tax base was something they weren’t going to allow to happen. If you take that in context, and expand it out to its logical conclusion, what they are saying is, “We will not allow casinos to lose in this state.” There is a voiced attitude of the agents that patrons have to deal with every day.

I have a client who was back roomed and we tried very hard to get Metro to prosecute the casino for false imprisonment. We showed up at the station and requested they take a report. They wouldn’t take a report. I actually spoke to a police officer who said to me, “Well, he was card counting. Of course they put him in the back room. That’s cheating.” This is a police officer in the state of Nevada who thinks it is cheating to count cards. No, sorry, the Supreme Court of Nevada has said three times it is not cheating. Reason tells you it’s not cheating. Maybe so, but the guy on the street doesn’t view a professional gambler with any sympathy. It might be jealousy. Whatever the rational might be, there just isn’t a depth of sympathy for card counters and other legal advantage players.

If the cop on the street thinks that is the case, how are you going to get lawyers or the general public to look at these people as anything other than dreck? Are they dreck? Not the ones I know. My clients include business leaders, mathematics professors at national universities, and noted authors. They are not dreck. This whole concept of treating them as less than upstanding citizens is particularly curious when you balance against it the idea that the casinos are allowed to use their skills to make money, and they are the stellar citizens of Nevada. But a player who uses his skills should be persecuted. Isn’t that a curious perspective?

RWM: It certainly is. Do you have any other advice to the player when confronted by the casino?

Nersesian: Don’t show a fake ID. I know a lot of guys are carrying them. If you use another name, one thing that might add some protection is to go down to the Clark County Clerk’s office and register that name as a “registered assumed name.” The law regarding identification is ambiguous and I believe unconstitutional. The law says,

NRS 205.465 Possession or sale of document or personal identifying information to establish false status or identity.

1. It is unlawful for a person to possess, sell or transfer any document or personal identifying information for the purpose of establishing a false status, occupation, membership, license or identity for himself or any other person.

Nersesian: Pretty broad, isn’t it?

RWM: Wow. So if my wife uses my player’s card in the slot machine, she’s committing a crime under that law.

Nersesian: There is an argument that she is. I don’t think this statute passes constitutional muster. It’s vague and fails to include a scienter element, but do you want to be the guy who spends two days in jail before being bailed out for $5,000 to see if that is true? There is also a statute, or ordinances, that deal with doing business under an assumed name. The argument will be when this statute is popped on someone who has filed that DBA certificate is that this is not a “false” identity. This is a legal, fictitious identity, and there has to be a distinction between the two, else the assumed name statutes would not exist. If you are going to use fictitious ID, file an assumed name certificate in the county where you are using it. Even then you can’t be sure you are not committing a crime, as far as Nevada defines one. Isn’t this fun?

Gamblers have gone to great lengths to avoid being noticed. Often the simplest diversion will add hours to the play. For example, I know of a case where a Gaming agent, a professional security officer, and a chief of security watched the wrong guy on the table for hours before they figured out he was getting signals. They were dumbfounded as to where his information was coming from. Then they watched the other guy at the table, since the first guy was not doing anything to get information. They watched the other guy for hours to figure out what the signals were. The signals were blatantly obvious. My point is not that surveillance is inept. My point is that players think all this stuff is known, and as soon as you do something they are going to see it. The simplest stuff can take years for them to decipher.

On the other hand, I have another case where a guy was popped twenty minutes after he sat down. He was 86’ed. He somehow was in Griffin. His spread was $50 to $200. He’s relatively an amateur.

RWM: Why is this a case?

Nersesian: He was back roomed. And he did everything right. He said, “I don’t want to go there.” They entered the back room. “I don’t know why I’m here. Let me go.” Then the beautiful part, the security guard says, “You’re here because we found you in the book. We know you’re a card counter.” Talk about handing it to me. To add insult to injury, he asks the security supervisor who says, and this is cute, “You’re here because you’ve committed a gaming violation.” He asked, “What violation?” The security chief essentially says, “I don’t have to tell you.” And he walks out. Then he kept telling the other security officers, “Let me go right now. You have no right to hold me. You know that I have done nothing illegal. Let me out that door.” They told him to calm down and he said, “I’m perfectly calm. I just don’t want to be here.” Then the supervisor comes back in and my client said, “Let me go.” The supervisor said, “First, I want to ask you some questions.” My client again said, “Let me go right now.” Eventually when it became clear they would get nothing, he was allowed to leave.

RWM: Should he have said, “Call the police.”

Nersesian: That’s the case where we did call the police. They said, “So? You were card counting.” I’ve got a letter from Metro saying, to paraphrase, “We choose not to investigate or prosecute. Our scarce resources cannot be used on such claims.” No, but if a casino calls them up and says they have a disorderly person, how long before they are over there hauling that guy away?

RWM: My first question to you was: Why don’t lawyers take these cases? Now I’m wondering: Why do you take them?

Nersesian: I do this because what is going on in this community is not some minor infringement in everybody’s day-to-day life. To be thrown into a back room against your will, and be told that you have to do whatever they tell you for however long they want—that is imprisonment. It is traumatic beyond what you or I could ever fathom. Those lawyer friends that I told you about, and they are dear friends, they think I’m tilting at windmills like Don Quixote. I get very angry with them. If you’re a lawyer, you took an oath. When I tell my friends that this is what I do to give back, their reaction is, “Well, that’s pretty silly. You’re giving back by making things worse.” The kind of cases I am talking about, the casinos think they can treat patrons as chattel, as pieces of property. These people are not chattel, and they have not done anything illegal. For a casino to think that they have some special position in society that allows them to do this to innocent people cannot be reconciled with the country we live in. That’s why I do it. Because it angers me that much. I don’t make money at this. It has been a money loser for years, but it is a matter of principle, and a wrong that needs righted.

Bob Nersesian can be reached c/o:

Nersesian & Sankiewicz
528 S. 8th Street
Las Vegas, NV 89101
(702) 385-5454

SIDEBAR: Casinos and Nevada Politics

The Nevada Gaming Commission and the State Gaming Control Board comprise the two-tiered system charged with regulating the Nevada gaming industry. The Commission and Board administer the State laws and regulations governing gaming for the protection of the public and in the public interest in accordance with the policy of the State.

The Nevada Gaming Commission is a five-member lay body appointed by the Governor, which serves in a part-time capacity. The primary responsibilities of the Commission include acting on the recommendations of the State Gaming Control Board in licensing matters and ruling in work permit appeal cases. The Commission is the final authority on licensing matters, having the ability to approve, restrict, limit, condition, deny, revoke, or suspend any gaming license.

The Gaming Control Board is made up of three full-time members, appointed by the governor to four-year terms. The gaming statutes require the board to include: one person with a minimum of five years experience in public or business administration; one person who has been a certified public accountant for five years or more, or who is an expert in finance, auditing, gaming, or economics; and one person with a law enforcement background. The Board’s purpose is to protect the stability of the gaming industry through investigations, licensing, and enforcement of laws and regulations. They also insure the collection of taxes and fees, and maintain public confidence in gaming. The Board implements and enforces the state laws and regulations through seven divisions. Those seven divisions are: Administration Division, Audit Division, Corporate Securities Division, Electronic Services Division, Investigations division, Tax and License Division, and Enforcement Division.

If a card counter or other casino patron were to have an interaction with someone from Gaming, it would most likely be someone from the Enforcement Division. The Enforcement Division is the law enforcement arm of the Gaming Control Board. It maintains five offices statewide and operates 24 hours a day, 7 days a week. Primary responsibilities are: to conduct criminal and regulatory investigations, arbitrate disputes between patrons and licensees, gather intelligence on organized criminal groups involved in gaming related activities, make recommendations on potential candidates for the “List of Excluded Persons,” conduct background investigations on work-card applicants, and inspect and approve new games, surveillance systems, chips and tokens, charitable lotteries, and bingo.

For an in-depth look at the Gaming Commission, read License to Steal, by Jeff Burbank. ♠

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Bob Nersesian, An Attorney in Las Vegas, Successfully Sues Las Vegas Casinos on Behalf of Card Counters and Other Professional Gamblers
Bob Nersesian has become revered among professional gamblers and semi-pro card counters for his willingness to take on the Las Vegas casinos with lawsuits when they backroom or otherwise abuse these players.