Uston v. Resorts: the 1982 ruling that a casino cannot bar a card counter

Losing in Nevada first

Kenneth Uston was not a professional gambler by training. Born in New York in 1935, he went to Yale at sixteen, took an MBA at Harvard and rose to senior vice-president of the Pacific Stock Exchange in San Francisco before blackjack took over. By the mid-1970s he was running counting teams in Las Vegas on the model Edward Thorp’s arithmetic had made possible, and in 1977 he described the method in The Big Player, written with Roger Rapoport. The casinos read the book too. Being recognised became the main occupational hazard of the job.

On 29 June 1975 he sat down at the Flamingo Hilton and was escorted out under Nevada’s trespass statute. He sued, in federal court, on the theory that a casino so thoroughly licensed and regulated by the state was acting for the state when it threw him out, and that the state could not treat one lawful player differently from another. The theory failed twice. In Uston v. Airport Casino, decided by the Ninth Circuit on 24 May 1977 over his exclusion from the Marina casino “solely because he is a competent blackjack player”, the court found no state action in the casino’s decision. In Uston v. Hilton Hotels Corp., decided by the federal district court in Nevada in 1978, Chief Judge Foley held that the state’s gaming statute imposed no obligation on Nevada to compel a casino to admit a person it believed to be a card counter.

That is still the law in Nevada and in most of the United States. A casino is private property open to the public, and the traditional American rule lets the owner of such a place exclude anyone for any reason short of the ones civil rights statutes forbid. Skill at the owner’s own game is not one of those reasons. What made New Jersey different was not a kinder view of card counters but a different statute, and a different idea about who owned the rules.

30 January 1979

Resorts International opened on the Atlantic City boardwalk on 26 May 1978, the first legal casino in the United States outside Nevada, and for more than a year it was the only one. Uston moved east and began playing there in November 1978. On 5 January 1979 a new Casino Control Commission rule for blackjack took effect; contemporary reporting described it as allowing the cards to be shuffled only once per shoe, which is exactly the condition a counter wants, since the count is worth most deep in a shoe that has not been reshuffled. On 30 January 1979 Resorts barred him from its blackjack tables. He was not accused of cheating, of using a device or of disturbing anyone. The stated reason was that his way of playing increased his chances of winning.

Uston complained to the Commission, which sided with the casino: Resorts, it held, had a common-law right to exclude any patron for any reason. In December 1979 the Commission and the casinos tried the alternative as an experiment, admitting counters to the tables for a trial period. According to the wire reports of the time the trial was cut short after teams of counters won about $1.4 million. The number did nothing to soften the casinos’ view, and the case went up on appeal.

The Appellate Division ruled on 11 May 1981, after argument on 9 March, that the power to blacklist a patron belonged to the Commission alone, and that Resorts had excluded Uston for his skill rather than for anything that made him an undesirable. The casino obtained a stay and took the case to the state’s highest court, which heard argument on 9 February 1982 and decided it on 5 May.

What the court actually decided

Justice Pashman’s opinion for a unanimous court rests on two legs, and the second is the one that mattered. The first is the common law. New Jersey had once followed the old English rule that a theatre could eject a ticket-holder for no reason at all, but the court had already moved away from it: in State v. Schmid, two years earlier, it had said that “the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.” An owner who opens the doors to everyone keeps the right to remove the disorderly, the intoxicated and the dangerous. Uston, the court observed, “does not threaten the security of any casino occupant. Nor has he disrupted the functioning of any casino operations.”

The second leg is the Casino Control Act. Section 100(e) of the Act says that all gaming shall be conducted according to rules promulgated by the Commission, and the Commission had written blackjack down in detail: the decks, the shuffle, the cut, the wagers, when a player may double or split. Uston had followed every one of those rules. If a casino could add a further, private rule that the game must not be played too well, the court reasoned, the state’s control of the game would be a fiction. As the opinion put it, the Commission “has promulgated the blackjack rules that give Uston a comparative advantage, and it has sole authority to change those rules.” Absent a valid contrary rule from the Commission, Uston “possesses the usual right of reasonable access to Resorts International’s blackjack tables.”

Two things the court did not decide are as important as the one it did. It did not say that card counting was a right; it said the Commission had not exercised its authority on the question, and expressly left open whether a Commission rule excluding counters would be lawful. And it did not throw the tables open at once. A temporary order keeping Uston away from Resorts’ blackjack tables was continued for ninety days, which the court described as time for the Commission to act. Resorts’ spokesman told the wire services the casino was “disappointed but we believe there will be a fair resolution to the problem.” The resolution arrived on schedule.

The commission has promulgated the blackjack rules that give Uston a comparative advantage, and it has sole authority to change those rules.Uston v. Resorts International Hotel, Inc., 89 N.J. 163 (1982), Pashman, J.

The countermeasures

The Commission did not ban counters. It changed the game so that counting was worth less, which is what the court had all but invited it to do. Rule amendments published in the New Jersey Register on 7 June 1982 and adopted on 2 August 1982 rewrote the blackjack shuffle regulation, N.J.A.C. 19:47-2.5, so that the dealer shuffles “immediately prior to commencement of play, after any round of play as may be determined by the casino licensee and after each shoe of cards is dealt.” That phrase, “after any round of play as may be determined by the casino licensee”, is the shuffle-at-will rule. A pit boss who believes the shoe has turned rich in tens can order a shuffle before the next hand, and the count goes back to zero.

Rule citations and Register references as recited by the Third Circuit in Doug Grant, Inc. v. Greate Bay Casino Corp. (2000) and the New Jersey Supreme Court in Campione v. Adamar (1998). Section numbers are those in force at the time; the blackjack rules have since been recodified.

Each measure attacks the same thing, the memory of the shoe. Counting works only because cards dealt are cards gone, and a shoe short of low cards is a shoe rich in high ones. Shuffle earlier, shuffle more, or shuffle continuously, and the memory is shortened or removed. The extra decks work on the other side of the equation: the same run of small cards moves the composition of an eight-deck shoe far less than a single deck. None of it required the counter to leave. It required only that the thing he was counting stop being worth counting.

The rules did not end the argument, they moved it. In 1991 Anthony Campione, a counter identified by TropWorld’s in-house card-counting team, was held to a $100 maximum at a table where other players were allowed $1,000 and restricted to one hand while others played several; he sued, a jury awarded him $1,519,873, and on 22 July 1998 the New Jersey Supreme Court held that a patron may bring a common-law discrimination claim against a casino in the ordinary courts, while leaving to the Commission the first word on what its own countermeasure regulations permit. In Doug Grant, Inc. v. Greate Bay Casino Corp., decided on 2 November 2000, a group of counters challenged the countermeasures themselves and lost; the Third Circuit’s answer was that “the normal chance and random character of any casino game is necessarily defined and determined by the rules governing the conduct of the game”, and the rules were the Commission’s to write. Uston himself did not see most of this. He died in Paris on 19 September 1987, at fifty-two.

A shoe with no memory

It is worth being precise about why none of this, the ruling, the shuffle-at-will rule or the continuous shoe, has any bearing on the blackjack on this site, because the reason is structural rather than a matter of policy. The Commission’s countermeasures all shorten the memory of a physical shoe. The engine here deals from a shoe that has no memory to shorten.

Every card in a round is derived separately. The client code takes the round’s committed server seed as an HMAC-SHA256 key, signs the message clientSeed-nonce-cursor, reads the first eight bytes of the digest as a number u between 0 and 1, and deals card floor(u × 52). The cursor is the position in the deal order: the player’s first card, the dealer’s up card, the player’s second card, the dealer’s hole card, then each further draw. Because the cursor changes and nothing else does, each card is an independent draw from all fifty-two with replacement. The ten you were just dealt does not make the next ten any less likely. A running count of what has been dealt carries no information about what comes next, which is exactly the property a dealt shoe lacks and a counter lives on.

• A dealt shoe has memory. Its composition drifts as cards leave it, the drift can be tracked, and the house’s defence is to shorten the memory: shuffle earlier, shuffle at will, shuffle continuously.
• An infinite shoe has none. Each card is a fresh function of the seed pair and its cursor, so there is nothing to track and nothing for the house to reset. No shuffle-at-will rule exists here because no shuffle exists.
• The rules are the code. In Atlantic City the rules of blackjack are a regulation that a player can read and the house cannot privately amend. Here they are the derive module, published, with the basic strategy priced cell by cell against it.

Uston won the right to play a game whose rules were written down by someone other than the house, and the house answered by asking that someone to rewrite them. A game whose rules are code has the same property in a stronger form: the rule that decides each card is fixed before the round, committed to by hash, and reproducible afterwards by anyone who cares to check. It also means there is no edge in it for a counter, and we would rather say that plainly than let anyone spend an evening looking for one.