Court brings needed clarity to skill game law

A Hanover County judge has provided much-needed clarity in the ongoing debate surrounding the legality of skill games in Virginia. In dismissing the prosecution of a local convenience store owner who operated a Queen of Virginia Skill Game machine developed by Pace-O-Matic, the court rightly recognized that certain gaming terminals – specifically those redesigned in response to recent legislative changes (called QVS2 games) – are not subject to the statewide ban.

This outcome reflects what many of us have long understood: business owners and good corporate citizens who conform their actions to meet new legal requirements should not face prosecution. With this decision, the commonwealth has an opportunity to move forward with a clearer understanding of the law and a more measured approach to its enforcement.

For several years, the question of whether so-called “skill games” should be illegal has sparked vigorous debate in the General Assembly and across the commonwealth.  These devices, which allow players to engage in games where skill and strategy influence the outcome, became the focus of legislative action.

In response, the General Assembly amended the Virginia Code to prohibit machines that are activated by the insertion of a “coin, currency, ticket, token, or similar object.” (See Va. Code §§ 18.2-325(1)–(6).) The law also imposes significant civil and criminal penalties — up to $25,000 per device — for operating machines that fall within that definition. See id. § 18.2-326. In good faith, industry leaders responded by modifying their systems to comply with the new legal standard, specifically by removing any requirement for physical insertion of payment to play, and conforming their gaming systems to be played without inserting coins or other physical objects.

Unfortunately, even after the statute was amended, uncertainty persisted.  Despite sound legal analysis — including my own — concluding that the redesigned QVS2 machines complied with the letter of the law, some officials advanced a broader interpretation.  They argued that the statute prohibited all skill games, regardless of whether physical payment was required. But that is not what the law says. The General Assembly chose specific language: it only prohibited devices that require “the insertion of a coin, currency, ticket, token, or similar object to operate, activate, or play a game, the outcome of which is determined by any element of skill of the player.” Va. Code § 18.2-325(6) (emphasis added).  Absent that element — absent a physical act of insertion — prosecutors cannot simply read into the law a prohibition that isn’t there.

The Hanover County Court’s decision reflects a proper and principled application of the law.  The charges at issue were not grounded in the text of the governing statute, and the court appropriately rejected an interpretation that stretched beyond what the law clearly prohibits.

Because the QVS2 games do not require the insertion of money, tokens, or any similar object to play, they do not fall within the statutory definition of an illegal skill game under Virginia Code 18.2-325(6). This decision reaffirms core legal principles — chief among them, the rule of lenity, which requires that any ambiguity in a criminal statute be interpreted in favor of the accused. In a system built on due process and the rule of law, citizens must have fair notice of what conduct is prohibited before facing prosecution.

In reaching its decision, the court expressed concern about the statute’s vagueness — specifically, that an ordinary person reading the law could reasonably believe that operating a machine like the revamped QVS2 machine was lawful, only to later face criminal charges.  Courts have long recognized that vague laws threaten due process by failing to provide clear standards of conduct and by inviting inconsistent or subjective enforcement.

As the U.S. Supreme Court has stated, “a vague law is no law at all.” United States v. Davis, 588 U.S. 445, 447 (2019). When individuals “of common intelligence must necessarily guess at [a law’s] meaning and differ as to its application,” the statute “violates the first essential of due process of law.” Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). The Hanover court’s ruling reinforces the constitutional requirement that it is the legislature — through their plain words and language, not through conjecture or speculation — that must define what the law prohibits.

This ruling delivers long-needed clarity in the legal and regulatory uncertainty surrounding skill games in Virginia. The court made clear that the QVS2 machines, as currently configured, do not violate the statute as written.  That clarity is essential for business owners across the commonwealth who have sought to operate responsibly and in compliance with the law.

The rule of law depends on clear statutes, predicable enforcement, and judicial fidelity to the plain text of criminal statutes.  With this decision, Virginia has an opportunity to move forward with confidence – providing clear guidance for those working in good faith to follow the law.

Jerry Kilgore is a former Virginia attorney general. He also served as the state’s secretary of public safety and as assistant U.S. attorney for the Western District of Virginia. Kilgore is a member of Cozen O’Connor’s State Attorneys General Practice in Richmond.