Fourth Circuit Rules Deaf Inmate Has the Right to Use Videophone

(AP Photo/Charles Rex Arbogast)

(CN) — A North Carolina prison violated a deaf inmate’s First Amendment rights by not allowing him to use a videophone to contact people on the outside, the Fourth Circuit found on Wednesday.

The appellate court reversed a district court decision that had ruled in favor of the U.S. Bureau of Prisons in a case brought by Thomas Heyer in 2011.

Heyer, who has been deaf since birth, was convicted of possessing child pornography and imprisoned for 18 months in 2007 for violating the terms of his parole.

Prosecutors labeled Heyer a sexually dangerous person in 2008 under the Adam Walsh Child Protection and Safety Act, and have since held him in custody in a federal correctional institution in Butner, North Carolina.

He sued the bureau over its failure to provide American Sign Language interpreters for medical and mental health treatment and religious services, access to a videophone and warning lights in his cell.

But judges in the Eastern District of North Carolina ruled against him following a two-day trial.

U.S. Circuit Judges Barbara Keenan and Henry Floyd, both appointed by Barack Obama, and Bill Clinton appointee Diana Motz made up the Fourth Circuit panel that reversed the lower court’s decision on Wednesday.

“Although we are hesitant to disturb the district court’s considered findings, we must do so here. We reverse the district court’s post-trial judgment and remand for entry of judgment in favor of Heyer as well as any necessary proceedings to determine an appropriate remedy,” wrote judge Floyd in the 37-page opinion, which found the district court had erred.

“The evidence at trial established that Heyer lacks any ability to communicate with the Deaf community,” Floyd added. “And the district court clearly erred by crediting BOP testimony about the risks of point-to-point calls without considering the wealth of testimony about safety features that have managed those risks for every other form of communication it makes available.”

During oral arguments in front of this same panel in October, Heyer’s attorneys argued that video calls are essential for the detainee because he can best communicate to other deaf individuals in American Sign Language. 

Responding to an opposing argument that his client had access to email and teletypewriter — a text messaging system for the deaf and speech-impaired — Andrew Tutt from the law firm Arnold & Porter told the panel, “What looks like an attractive accommodation is like telling an English speaker that they can only make telephone calls to non-English speakers.”

Justice Department attorney Mallory Brooks Storus, arguing on behalf of the bureau, had pointed out that Heyer is not a “typical inmate.” 

She added that Heyer “has an extensive history of sexually deviant behavior against children.” According to Storus, that is why the bureau decided not to provide the specific videophone technology to Heyer. 

“As Heyer argues, providing point-to-point calls through the SecureVRS system with the same protocols associated with TTY calls would greatly reduce the risk that those calls will result either in child exploitation or disruptive behavior within the prison,” Floyd wrote on Wednesday. 

He added, “BOP has presented no testimony explaining how Heyer would successfully expose himself in a prison hallway while under the watchful eye of BOP staff.”

The Bureau of Prisons already records and translates calls made by thousands of inmates in about sixty foreign languages, Floyd wrote, calling the bureau’s total ban on point-to-point video calls for Heyer an “exaggerated response.”

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