Wiki/Historical Rights/Legality

I thought it would be useful to provide a basic outline of the rights your characters can feel entitled to in any legal entanglements for future sessions. As legal rights are always in a state of flux as our society develops even now, you’ll also want to incorporate any knowledge delivered in the general historical timeline into what’s mentioned here (I'll be breaking out the timelines based on subject as well as date).

You can expect the use of all the standard rights understood to be a part of the American culture, from freedom of speech to freedom of religion. However, certain restrictions do apply by local laws to even these basic rights. It’s fairly common in most jurisdictions for there to be anti-profanity laws, especially in the presence of women and children, as well as anti-blasphemy laws or anything considered objectionable by the mainstream American public (these laws have been used against political dissidents such as Communists, or in schools, like the Scopes Monkey Trial). Generally, these laws cannot carry stringent enforcement measures, and punishment is usually in the form of a fine. Religious freedom is generally interpreted through the understanding of the times - which is to say, Christian religious freedom. Schools pray in the mornings, as do football teams before games, as does the U.S. Congress before session. Even in this case, however, exceptions and exclusions apply. Catholicism is still widely considered to be a foreign and blasphemous faith, and many political groups, such as the KKK, target Catholics specifically. To be Catholic is understood as within your rights, but generally ostracizes you from mainstream American culture and avenues of enfranchisement, with the dubious exception of larger Eastern seaboard cities such as New York, Boston, and especially Providence. Many clubs and organizations can and do restrict membership based on religious affiliation. Especially to be an atheist is considered very, very radical, perhaps even dangerous. Even those who are secular generally keep to a kind of noncommittal Christianity, and their language is often coded in its terms. A few well known atheists, such as H.L. Mencken, make a regular habit of scandalizing polite society and have built careers on it. They are the exception, not the rule.

Though the standard Bill of Rights is in effect, many interpretations we understand as part of the fabric of our culture were non-existent then. There was nothing called “Miranda rights” and no understanding of it being necessary for a law enforcement officer to inform anyone about them at anytime. Your rights, encompassed in the 4th and 5th Amendments, are available to you, but you will not be reminded of them, and, despite it being an assumption of the legal doctrine of the time that they are understood generally, the exact parameters of the protection are not actually generally understood. If you’re under duress, I’ll probably have you roll to remember these essential rights. The relevant skills in such a roll will be Academics or Politics, depending on the situation, if you want to prepare for such an eventuality.

The protection from unreasonable search and seizure has only recently had any teeth put in it. In 1914, the U.S. Supreme Court ruled, in the case of Weeks vs. United States, that evidence procured in violation of the fourth amendment was inadmissible in court and could not be used to secure a conviction. This was further strengthened in Silverthorne Lumber Co. v. United States, when it was ruled that derivatives of illegally obtained evidence (leads, further evidence, even convictions) were inadmissible in court, by a doctrine which has come to be known as “fruit of the poisonous tree.” However, at this time, the Bill of Rights is not understood to always extend to the states, and so this ruling only applied to federal authorities. Some states have adopted similar statutes or variations on the same theme, from restitution to only excluding forced confessions. Regardless, though protections exist against warrantless searches, and any department indulging in such practice is opening itself up to suit, only federal authorities are required to abide by the restrictions and legal doctrines outlined in Weeks.

Additionally, there are workarounds. For instance, federal authorities may accept and then use, even in court, evidence obtained illegally by state or local law enforcement authorities. Illegal in this context means simply without a warrant, though legal doctrines surrounding notions of reasonable suspicion or probable cause are first being formulated. Clearly visible evidence could be construed as enough suspicion to allow an immediate and legal search of nearby persons or premises. As could, especially for local police, mere suspicion of criminal activity or lifestyle. This can make life very difficult for an ex-felon or known gangster. However, you can also sue police or otherwise combat them in court if they engage in these tactics, but it requires proving you are not, in fact, a suspicious person, which can be difficult if you’ve engaged in criminal activity in the past.

Speaking of suspicious people, there’s a legal technique in vogue at this time called the suspicious person charge. This is highly controversial, almost certainly unconstitutional, and, in the legal understanding of the period, therefore not available to federal authorities. Local and state authorities, however, can and do indulge in these tactics. Like the anti-profanity laws mentioned above, the debatable legal standing of these charges prevents them from being very impactful, usually resulting, upon conviction, in a month or two in the workhouse and a fine, approximately $50 or so, depending on the municipality and the judge. Again, these charges can be fought, but criminal convictions in your past severely limit your ability to combat them effectively. The primary function of these charges is for cities and towns to drive out people they don’t like, usually non-residents known to have criminal records. Often, the judge will offer to rule time served if the defendant pleads guilty and promises to leave the city and stay away. Sometimes, they will not. A fairly useful legal analogue in modern times is the vagrancy charge.

All American citizens have a right to trial by jury, assuming they don’t accept a plea bargain if offered. Even with this understanding, however, there are key differences between this understanding of the law as practiced today and how it was practiced in the 1920s. Due process then tended to move more quickly than it does now for the simple reason that the courts were less clogged (this is increasingly not the case regarding alcohol-related charges, to which numerous judges have attempted extra-legal workarounds). The right to legal representation was assured, but the state had no explicit instructions to provide an attorney, only the inability to prevent a defendant from obtaining one of his own volition.

Gun rights were generally more strict, especially in eastern urban areas. A permit to own guns was often required, and to carry a gun on one’s person, especially a concealable weapon, generally required a deputization or a certificate from a judge, depending on the state. Even so, rifles were fairly common, and the gun market itself was barely regulated. Federally, by the second amendment, there were no prohibitions on owning or carrying guns, but local agencies could act according to their own volition. A gun found on your person or your property at the time of arrest, assuming you have a reputation for violence and don't have a permit, will be seized and potentially used as evidence against you.

Wiretapping is relatively new technology already, famously, abused. The BI has garnered a reputation for foul play over its short history, particularly its function as the political tool of former Attorney General Harry Daugherty, who, when under investigation stemming from a couple of powerful opposition Senators, had the BI “investigate” those Senators. What followed was a campaign to discredit them through blackmail, obtaining the information necessary to the task by following them and their families, reading their mail and telegrams, looking deeply into their affairs back home, and tapping their phones. This was revealed and exploded into a massive political controversy, resulting in Daugherty’s resignation as Attorney General. The next Attorney General has publicly stated his ban on wiretapping as a tool of the BI. Even so, what applies to federal agencies doesn’t necessarily apply to local agencies, especially in this case, as it’s simply policy that keeps the BI from this most useful tool. As a law enforcement practice, wiretapping and similarly invasive methods are still on shaky ground, technically legal but open to interpretation and, perhaps, compromise.

There are also multiple shades to interpretations of kidnapping as a category of crime, largely in response to the contemporary legal tendency to defer to state’s rights as opposed to federal oversight. In United States v. Wheeler, a case brought by the federal government against an Arizona sheriff for his mass, forced deportation of striking workers miles into a nearby desert, followed by posting deputies at every entrance to their town who only allowed those carrying passports issued by himself inside, the U.S. Supreme Court made some interesting distinctions in terms of what came to be known as the “freedom of movement,” understood as a federal right protected in the Privileges and Immunities Clause of the Constitution. Using that clause, the Court established this right, though not specifically kidnapping or forced detainment as a violation of it. It also ruled, however, that the federal government had no Constitutionally based power to prosecute against kidnapping, which power was limited to the States based on their statutes, unless a government actor was involved. So, kidnapping as a crime fell only under local jurisdiction to prosecute and investigate, unless a state official, such as a policeman, committed the crime. However, no mention was made of the fact that Wheeler, the defendant, was such a state actor and used the full faculties of his office in kidnapping literally thousands of people. Subsequently, there being no federal legislation against kidnapping, federal actors virtually have no jurisdiction in kidnapping cases, and all kidnapping prosecutions must be conducted by the ruling of the state in which the crime occurred, which is highly variable.

Entrapment, defined as when law enforcement traps, deceives or otherwise forces someone into committing a crime, is not a legal doctrine or prohibition at this time. Regardless of the actions of law enforcement, with the exception of an unreasonable, warrantless search of person or premises, committing a crime is prosecutable. Be wary.

Property rights are also much more powerful in the 20s than they currently are. If someone is on your property and you don't want them there, you are well within your rights to shoot them, though there will be an investigation as to how lawful the action itself was, and potential for prosecution if the killing is found to be unjustified. That being said, prosecution of that nature will most likely find in favor of the landholder (a general tendency in American courts towards the trappings of wealth) and the consequences of such a conviction will be much less severe than a typical murder investigation.