                        PUBLISHED

UNITED STATES COURT OF APPEALS
              FOR THE FOURTH CIRCUIT


JIMMY MARTIN; LUCKY STRIKE              
LLC,
               Plaintiffs-Appellants,
                 v.
REGINALD I. LLOYD, as Chief of the
South Carolina Law Enforcement
Division; SCARLETT A. WILSON, as
Solicitor of the Ninth Judicial
Circuit; ALAN WILSON, as The
Attorney General for the State of
South Carolina,                             No. 11-1405
              Defendants-Appellees,
                 and
ROBERT STEWART, as Chief of the
South Carolina Law Enforcement
Division; HENRY MCMASTER, as
Attorney General of the State of
South Carolina; RALPH HOISINGTON,
as Solicitor of the Ninth Judicial
Circuit,
                        Defendants.
                                        
        Appeal from the United States District Court
      for the District of South Carolina, at Charleston.
              David C. Norton, District Judge.
                    (2:06-cv-00400-DCN)
                Argued: September 18, 2012
                Decided: November 21, 2012
2                     MARTIN v. LLOYD
      Before WILKINSON, MOTZ, and GREGORY,
                   Circuit Judges.



Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Motz joined.


                         COUNSEL

ARGUED: James Mixon Griffin, LEWIS, BABCOCK &
GRIFFIN, LLP, Columbia, South Carolina, for Appellants.
Kenneth Paul Woodington, DAVIDSON & LINDEMANN,
PA, Columbia, South Carolina, for Appellees. ON BRIEF:
Richard A. Harpootlian, LAW OFFICES OF RICHARD A.
HARPOOTLIAN, Columbia, South Carolina, for Appellants.
Alan Wilson, Attorney General, Robert D. Cook, Deputy
Attorney General, C. Havird Jones, Jr., Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Columbia, South Carolina, for Appellees Alan Wilson
and Scarlett A. Wilson; William H. Davidson, II, DAVID-
SON & LINDEMANN, PA, Columbia, South Carolina, for
Appellee Reginald I. Lloyd.


                         OPINION

GREGORY, Circuit Judge:

   Appellants Jimmy Martin ("Martin") and Lucky Strike,
LLC ("Lucky Strike") appeal the district court’s grant of sum-
mary judgment in an action to enjoin enforcement of two
South Carolina statutes, S.C. Code Ann. §§ 12-21-2710 and
12-21-2712, which prohibit certain "device[s] pertaining to
games of chance." Appellants put forward two theories: first,
that § 2710 is void for vagueness and thus violates the Due
                       MARTIN v. LLOYD                       3
Process Clause of the Fourteenth Amendment to the United
States Constitution. Second, applying a little-used holding of
Ex Parte Young, 209 U.S. 123, 145-48 (1908), they argue that
the statutes violate their right to equal protection under the
Fourteenth Amendment because they are required to risk
imprisonment, fines and forfeiture of property to obtain a
determination as to the legality of a game under the statutes.
Because the statutes in question have a legitimate application,
we affirm the district court’s vagueness holding. We further
conclude that the statutes do not fall within the scope of Ex
Parte Young’s holding. As such, we affirm the district court’s
ruling.

                              I.

   Appellant Martin is a citizen of South Carolina in the busi-
ness of developing and operating gaming machines. After the
South Carolina legislature passed anti-gaming legislation in
1999 that outlawed a type of video poker game he was operat-
ing, Martin removed all of his machines from the state. See
1999 S.C. Act 125. He currently operates games only on
Indian-owned sites in Oklahoma. Martin claims that he would
like to develop a game that he can operate in South Carolina,
but is unable to do so because he is unclear on the reach of
the disputed statutes and unwilling to risk criminal prosecu-
tion if he unwittingly develops a non-compliant game.

   Lucky Strike is a limited liability corporation which oper-
ates gaming machines in convenience stores and other loca-
tions. Lucky Strike has stated that since 2003, the South
Carolina Law Enforcement Division ("SLED"), the agency
tasked with enforcing the statutes, has confiscated and
destroyed hundreds of its machines. Lucky Strike never chal-
lenged any of the seizures. Instead, it chose, along with Mar-
tin, to bring this facial challenge to the statutes.

   Section 2710 is part of South Carolina’s legal framework
regulating coin-operated machines and devices. It establishes
that:
4                     MARTIN v. LLOYD
    It is unlawful for any person to keep on his premises
    or operate or permit to be kept on his premises or
    operated within this State any vending or slot
    machine, or any video game machine with a free
    play feature operated by a slot in which is deposited
    a coin or thing of value, or other device operated by
    a slot in which is deposited a coin or thing of value
    for the play of poker, blackjack, keno, lotto, bingo,
    or craps, or any machine or device licensed pursuant
    to Section 12-21-2720 and used for gambling or any
    punch board, pull board, or other device pertaining
    to games of chance of whatever name or kind,
    including those machines, boards, or other devices
    that display different pictures, words, or symbols, at
    different plays or different numbers, whether in
    words or figures or, which deposit tokens or coins at
    regular intervals or in varying numbers to the player
    or in the machine, but the provisions of this section
    do not extend to coin-operated nonpayout pin tables,
    in-line pin games, or to automatic weighing, measur-
    ing, musical, and vending machines which are con-
    structed as to give a certain uniform and fair return
    in value for each coin deposited and in which there
    is no element of chance.

    Any person violating the provisions of this section is
    guilty of a misdemeanor and, upon conviction, must
    be fined not more than five hundred dollars or
    imprisoned for a period of not more than one year,
    or both.

   Section 2712 sets forth procedures for enforcement of
§ 2710:

    Any machine, board, or other device prohibited by
    Section 12-21-2710 must be seized by any law
    enforcement officer and at once taken before any
    magistrate of the county in which the machine,
                       MARTIN v. LLOYD                        5
    board, or device is seized who shall immediately
    examine it, and if satisfied that it is in violation of
    Section 12-21-2710 or any other law of this State,
    direct that it be immediately destroyed.

                              II.

   This Court reviews a district court’s grant of summary
judgment de novo, applying the same legal standards as the
district court. Nader v. Blair, 549 F.3d 953, 958 (4th Cir.
2008). Summary judgment is only appropriate where there is
no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Id. In determining whether a
genuine issue of material fact exists, the Court views the evi-
dence in the light most favorable to the non-moving party. Id.

   A statute is unconstitutionally vague under the Due Process
Clause if it "fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforce-
ment." United States v. Williams, 553 U.S. 285, 304 (2008);
see also South Carolina Medical Ass’n v. Thompson, 327 F.3d
346, 354 (4th Cir. 2003). When considering a facial chal-
lenge, courts first determine whether the enactment implicates
a substantial amount of constitutionally protected conduct.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494 (1982). If it does not, then the challenge
should only succeed if the law is "impermissibly vague in all
of its applications." Id. at 494-95. As we have explained, a
facial challenge is ineffective if the statute has a "plainly
legitimate sweep." United States v. Comstock, 627 F.3d 513,
518 (4th Cir. 2010) (quoting Crawford v. Marion Cnty Elec-
tion Bd., 553 U.S. 181, 202 (2008)). However, where a statute
imposes criminal penalties, the standard of certainty is higher
and the statute can be invalidated on its face "even where it
could conceivably have . . . some valid application." Wright
v. New Jersey, 469 U.S. 1146, 1152 (1985) (quoting Kolender
v. Lawson, 461 U.S. 352, 358 n.8 (1983)).
6                          MARTIN v. LLOYD
   Because Appellants bring a facial attack, the first question
is whether the statute implicates constitutionally protected
conduct. The district court answered this question by pointing
to the well-settled proposition that gambling "implicates no
constitutionally protected right." See United States v. Edge
Broad. Co., 509 U.S. 418, 426 (1993). The parties dispute
whether § 2710 can be used to confiscate games that are not
used for gambling.* In any case, Appellants make no argu-
ment that § 2710 infringes on constitutionally protected con-
duct. The appropriate inquiry, then, is whether § 2710 is
invalid "in all of its applications," keeping in mind that,
because this is a criminal statute, it must be more than a mere
"conceivable application." See Hoffman, 455 U.S. at 495;
Kolender, 461 U.S. at 358 n.8.

   Appellants concede in their Reply Brief that the statute,
taken as a whole, is not impermissibly vague in all its applica-
tions. For instance, they do not dispute that poker, blackjack,

   *South Carolina cases interpreting § 2710 have frequently upheld
enforcement of the statute where machines are used to gamble. In ruling
that machines dispensing game cards that could be redeemed for a cash
prize were illegal under § 2710, the Supreme Court of South Carolina
stated that "[t]he three elements of gambling – consideration, chance and
reward – are [ ] clearly present in a device which, for a price, and based
upon chance, offers a monetary or merchandise reward to the successful
player." Ward v. West Oil Co., 692 S.E.2d 516, 522 (S.C. 2010); see also
Sun Light Prepaid Phonecard Co. v. State of South Carolina, 600 S.E.2d
61, 64 (S.C. 2004) (holding that machines dispensing phone cards with
game pieces attached affording chance to win prize money were illegal
under § 2710); State v. 192 Coin-Operated Video Game Machines, 525
S.E.2d 872, 877 (S.C. 2000) (holding that possession of slot machines vio-
lated § 2710). However, none of these cases state that § 2710 applies only
to machines used for gambling. In a recent case, the Court of Appeals of
South Carolina agreed with SLED that machines need not be used for
gambling to be illegal under the statute. SLED v. 1-Speedmaster S/N
00218, 723 S.E.2d 809, 812 (S.C. Ct. App. 2011) ("SLED is correct that
section 12-21-2710 does not specifically require that an illegal gaming
device be used for gambling."). Respondents in this case appear to contra-
dict the SLED position in 1-Speedmaster S/N 00218, arguing instead that
§ 2710 only prohibits games used for gambling.
                       MARTIN v. LLOYD                        7
keno, lotto, bingo and craps are clearly outlawed. However,
they argue that one phrase in the statute—the blanket prohibi-
tion against possessing any "other device pertaining to games
of chance of whatever name or kind," is impermissibly vague
in all its applications.

   Even when bringing a facial challenge, a party may contest
certain provisions of a statute without taking on the whole of
the statute. See, e.g., Reno v. American Civil Liberties Union,
521 U.S. 844 (1997). However, a court is not confined to the
plain language of the contested statute when assessing a void-
for-vagueness claim. See Kolender, 461 U.S. at 355. A federal
court must "consider any limiting construction that a state
court or enforcement agency has proffered." Village of Hoff-
man Estates, 455 U.S. at 494 n.5. Further, when considering
phrases or words within a statute, those phrases or words
should be considered in the context of the statute as a whole.
The Real Truth About Abortion, Inc. v. Fed. Election
Comm’n, 681 F.3d 544, 554 (4th Cir. 2012).

   The Supreme Court of South Carolina has provided signifi-
cant clarity to the disputed phrase by deciding several cases
based, at least in part, on whether a device is a game of
chance under § 2710 and its predecessor statute. See State v.
DeAngelis, 183 S.E.2d 906, 908 (S.C. 1971) (affirming a
jury’s determination that a game requiring "no skill" was ille-
gal under a predecessor statute); see also Ward v. West Oil
Co., 692 S.E.2d 516, 522 (S.C. 2010) (holding that pull-tab
game machines were illegal games of chance); Sun Light Pre-
paid Phonecard Co. v. State of South Carolina, 600 S.E.2d
61, 64 (S.C. 2004) (holding that machine dispensing phone
cards with pull-tab attached was an illegal game of chance).
While these cases may not draw definitive parameters around
the catchall phrase that Appellants contest, they do demon-
strate that use of the term "games of chance" has a "plainly
legitimate sweep" and more than a conceivable application,
which is all that is required to survive a facial challenge to a
8                      MARTIN v. LLOYD
criminal statute where constitutional rights are not implicated.
See Comstock, 627 F.3d at 518.

   Appellants repeatedly assert that § 2710 can be read to out-
law standard board games like Monopoly. The Supreme Court
of the United States has made clear that, "[a] plaintiff who
engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the con-
duct of others." Village of Hoffman Estates, 455 U.S. at 495;
see also United States v. Lee, 815 F.2d 971, 974 (4th Cir.
1987) (explaining that a statute "is not invalid merely because
some of its hypothetical applications might raise constitu-
tional problems"). Here, the record does not show that Appel-
lants are in the business of developing family board games.
Moreover, they do not describe any concrete example of the
kind of game they seek to develop that would better anchor
their critique of the law. In discussing § 2710, the Supreme
Court of South Carolina has noted that courts should look to
whether a machine is intended as a gaming device and "will
look behind the name and style of the device to ascertain its
true character." Ward, 692 S.E.2d at 522 (citing 38 C.J.S.
Gaming § 10 (Supp. 2010)). South Carolina has taken a mea-
sured approach to enforcement for the eighty-one years
§ 2710 and its predecessor statutes have been in effect. There
is no indication that SLED officers might burst into a family’s
living room and yank a Monopoly board from the hands of a
shocked child. Appellants could not refer the Court to a single
instance demonstrating that South Carolina has enforced these
statutes in this kind of draconian fashion. Appellants made a
tactical decision to bring a facial challenge to this law—that
decision does not allow them to lean on extravagant hypothet-
ical scenarios that bear no resemblance to their own conduct
nor bear out in the historical pattern of enforcement.

  Appellants also argue that inconsistent enforcement and
judicial rulings on § 2710 establish its vagueness. A differ-
ence of opinion amongst judges or law enforcement does not
make a statute unconstitutionally vague. See Williams, 553
                        MARTIN v. LLOYD                          9
U.S. at 306 ("Close cases can be imagined under virtually any
statute. The problem that poses is [not] addressed . . . by the
doctrine of vagueness . . ."); The Real Truth About Abortion,
681 F.3d at 554-55 (holding that a difference of opinion
between a district court and the Federal Election Commission
on the enforcement of a regulation does not void the regula-
tion for vagueness). There will be gray areas in the interpreta-
tion of many statutes, and sometimes there will be
inconsistency in the outcomes of marginal cases, but this is
part and parcel of the process of statutory construction that is
integral to our common law legal system. See United States
v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963).

   While § 2710 may not be artfully written, it is not unconsti-
tutionally vague. The enforcement of this statute and the
South Carolina courts’ interpretation of it has contributed suf-
ficient clarity to meet the relatively low bar for this facial
challenge.

                               III.

   Appellants also argue that the disputed statutes violate the
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution because they are forced to risk
criminal prosecution, imprisonment, fines, and forfeiture to
gain a determination as to whether a proposed game is legal
under § 2710. In response to a Request to Admit during dis-
covery, Appellees conceded that South Carolina has no for-
mal mechanism in place to determine the legality of a game
other than "to make it operational in the state, subject it to sei-
zure by law enforcement, hav[e] it taken before a magistrate
judge to determine if the machine is legal or illegal and ris[k]
forfeiture of the machine and criminal prosecution." Appel-
lants urge the application of Ex Parte Young’s holding that a
state cannot force a party to risk severe penalties to obtain a
judicial determination if that determination involves a compli-
cated or technical question of fact. 209 U.S. at 145, 148.
10                      MARTIN v. LLOYD
   In Young, a Minnesota law set caps on rail transportation
rates and subjected agents or employees of any rail company
exceeding the rate to high fines and imprisonment. Id. at 145.
No pre-enforcement mechanism existed to test the legality of
the rates. Id. at 145-46. The Court held that the lack of a pre-
enforcement hearing violated due process and equal protec-
tion because any railroad agent or employee would have to
risk enormous fines and possible imprisonment to test the
validity of the rates. Id. at 146-47. The Court reasoned that the
statutory scheme effectively closed off access to the courts.
Id. As the Court clarified in a later case, "th[e] right [to judi-
cial review] is merely nominal and illusory if the party to be
affected can appeal to the courts only at the risk of having to
pay penalties so great that it is better to yield to orders of
uncertain legality rather than to ask for the protection of the
law." Wadley S. Ry. Co. v. Georgia, 235 U.S. 651, 661
(1915).

   While Young addressed railroad rates, courts have recog-
nized this theory in other contexts. See Solid State Circuits v.
U.S. Env. Prot. Agency, 812 F.2d 383, 391-92 (8th Cir. 1987)
(holding CERCLA damages scheme constitutional under
Young only because parties opposing a clean-up order may
test its validity without risk of punitive damages if they have
an objectively reasonable basis for believing the order invalid
or inapplicable); Pactiv Corp. v. Chester, 455 F. Supp. 2d
680, 691-93 (E.D. Mich. 2006) (recognizing viability of
Young theory in determining constitutionality of Michigan’s
Natural Resources and Environmental Protection Act); Reedy
v. Borough of Collingswood, 2005 WL 1490478, at 9-10
(D.N.J. June 22, 2005) (recognizing viability of Young theory
in the context of property maintenance and fire safety codes
that landlords could not appeal without risk of substantial
penalty); Aminoil v. United States, 599 F. Supp. 69, 74-75
(C.D. Cal. 1984) (granting preliminary injunction on basis
that CERCLA daily penalty and damages scheme was likely
unconstitutional under Young because there was no opportu-
nity for a hearing prior to issuance of administrative order).
                       MARTIN v. LLOYD                       11
We do not believe that Young is applicable in this case, how-
ever, because § 2710’s scope and validity is sufficiently clear
and the risks are too attenuated.

   The Young Court warned that its holding did not apply to
the typical statute where application is apparent without
investigation, but only to statutes where application "depends
upon the existence of a fact which can be determined only
after investigation of a very complicated and technical charac-
ter." 209 U.S. at 147-48. To reiterate, there is no question
about the multiple categories of games that § 2710 specifi-
cally covers. Even when considering the application of the
disputed catchall provision in the statute, a simple formula
determines the outcome: if skill predominates, then it is per-
missible, and if chance predominates, then it is prohibited. We
do not believe that understanding which side of the line a
game falls on necessitates the kind of intensive investigation
and technical analysis that Young requires. There will cer-
tainly be close calls when a game is in the gray area. Magis-
trate judges determining the legality of these games may very
well admit evidence from experts and examine the results of
complex testing. But, there are countless statutes with catchall
phrases that contain infirmities. Deciding that this catchall
phrase should fail because it, too, contains a gray area would
place this Court on a slippery slope.

   Additionally, the historical record of enforcement of § 2710
does not support Appellants’ argument that they risk dire
criminal prosecution if they put a game into operation that
turns out to be illegal. The statute that the Court struck down
in Young was newly minted and untested. 209 U.S. at 126-27.
Here, Appellants had an eighty-one year long track record at
their disposal and could not cite to a single instance in which
South Carolina had instituted the kind of criminal prosecution
that concerns them. To the extent this statutory scheme may
give rise to abuse in the future, the Appellants are free to
bring an as-applied challenge. However, there is little basis
for the facial challenge they bring here.
12                   MARTIN v. LLOYD
   For the foregoing reasons, we affirm the judgment of the
district court.

                                               AFFIRMED
