The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting new case filed last week in federal court in L.A., Matsumoto v. L.A. County Board of Supervisors; here are the key allegations:
5. Plaintiff David Matsumoto, a resident of the County of Los Angeles, brings this action because he wishes and intends to play poker for modest monetary stakes, within the City of Los Angeles and unincorporated areas of the County of Los Angeles, and to know whether doing so is lawful or not….
7. Plaintiff desires to play poker for small monetary stakes not to exceed a possible "win" or "loss" of twenty-five dollars ($25.00) at home games taking place within the city of Los Angeles and unincorporated areas of the County of Los Angeles.
8. Los Angeles County, Cal., Code of Ordinances 11114 § 1 (1975) states: "A person shall not deal, play, carry on, or conduct:
"A. Any game where players bet or wager money, checks, credits or other things of value against each other; or
"B. Any game of chance for money, checks, credits or other things of value."
9. Los Angeles County, Cal., Code of Ordinances 11114 § 2 (1975) states: "A person shall not bet or wager at or on any game."
10. Plaintiff also desires to inhabit homes in which poker is played within the City of Los Angeles and unincorporated areas of the County of Los Angeles.
11. Los Angeles County, Cal., Code of Ordinances 9555 § 2 (1968) states: "A person shall not knowingly permit any game prohibited by this chapter to be played, conducted or dealt in any house or other premises owned by, rented by, or in the lawful possession of such person."
12. Los Angeles County, Cal., Code of Ordinances 9555 § 2 (1968) further states: "A person shall not resort to, attend, visit or be in any house, room or other place in the county of Los Angeles where there is any gambling being conducted, played or carried on." …
Matsumoto argues this violates his freedom of association, violates his state and federal rights to privacy (the California Constitution expressly secures such a right), constitutes "improper morals legislation" and thus fails the rational basis test, and is unconstitutionally vague. I'm skeptical of some of the arguments, especially the federal constitutional ones, but the California constitutional right to privacy argument strikes me as stronger, though still an uphill battle. Indeed, one out-of-state case that struck down such a city ordinance, City of Birmingham v. Richard (Ala. Ct. App. 1967), suggested there may be a constitutional privacy problem with such ordinances (though it chiefly rested on state law preemption grounds):
The municipality is the creature of the state. In other words, the city lives by and through and for the purposes of the state, and we think it not only inconsistent, but is also unreasonable, for the creature to have and exercise more power and authority than the creator. By its laws, the state says to this appellant, in effect: You are at liberty to do all and every the acts complained of, and in so doing you violate no law of this sovereignty. For the municipality to say no, you shall do no such thing, is, in our opinion, a conflict, an inconsistency, and an unreasonable status, even under the flexible rule of police powers. The police powers have never been construed to take precedence over the Constitution of the state.
And the cases City of Birmingham cites make clear that the constitutional reference is to the state constitution's equivalent to the Fourth Amendment—"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches." While the search-and-seizure caselaw as such doesn't preclude searches of homes (especially when police have a warrant based on probable cause), it does rest on broad privacy principles, to which the Alabama opinions seem to be appealing; and these principles may be especially potent given the California Constitution's specific protection of the right to privacy. In any case, it will be interesting to see what the case (litigated by Eric George and my former student Chris Kolkey at Brown George Ross) yields.