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Deaf Oregon Prisoner Awarded $125,000 for Jail’s Failure to Accommodate Disability

by Mark Wilson

On September 25, 2019, a federal jury in Oregon ordered Multnomah County jail officials to pay $125,000 to a deaf man for refusing to accommodate his disability while he was in custody.

David Updike, 52, was born deaf and communicates through American Sign Language (ASL). He never learned to read or speak English. Having never heard English words, he is not proficient at lip reading because he does not know the shape that lips make to produce certain sounds. Updike “lives in the deaf world,” and all of his friends and his ex-wife are deaf.

Police were called to Updike’s home on a domestic disturbance call on January 14, 2013. Dispatchers were told the disturbance involved two deaf people, but responding officers did not bring an ASL interpreter with them. Rather, they obtained written statements from Updike and the other person involved in the incident.

Despite claiming that his deaf house guest, Karla McEvoy, had assaulted him after he refused to give her money, Updike was arrested for fourth-degree assault and harassment. He was transported to the Multnomah County Detention Center (MCDC) for booking.

MCDC has a telecommunications device (TDD) for deaf prisoners, and the county contracts with a private company to provide ASL interpreters at the jail. Yet guards did not call for an ASL interpreter or accommodate Updike’s disability during police questioning, the booking process, a medical intake interview, a recognizance interview, a classification assessment and arraignment.

His initial arraignment had to be postponed one day because an ASL interpreter was not available, causing Updike to remain in jail a day longer than he would have if his disability had been accommodated. Following his January 16, 2013 arraignment, Updike was released after spending two nights in jail; the charges against him were later dismissed. Following his release, he found someone had broken into his home, taking money and property; also, his van had been stolen.

While held at the jail, Updike repeatedly requested an ASL interpreter and a teletypewriter (TTY), but his requests were denied. He was also denied access to a computer, a video relay service, and pen and paper. He could not call his attorney or family without a TTY device, and could not watch television without a video relay service or closed captioning.

On September 13, 2013, Updike filed suit in federal court against the City of Gresham, Multnomah County and the State of Oregon, alleging the defendants had violated the Americans with Disabilities Act (ADA) and Rehabilitation Act by repeatedly failing to accommodate his disability during arrest and confinement. The city settled with Updike a few months later.

The district court then granted summary judgment to the state and county defendants. As previously reported in PLN, the Ninth Circuit Court of Appeals reversed, declaring that jail officials “may not turn a blind eye to a deaf ear.”

“To deny a deaf person an ASL interpreter, when ASL is their primary language, is akin to denying a Spanish interpreter to a person who speaks Spanish as their primary language,” the appellate court observed. “An ASL interpreter will often be necessary to ensure communication with a deaf person who has become enmeshed in the criminal justice system. At a minimum, officials must conduct an adequate investigation into what accommodations may be necessary to permit effective communication of the deaf while incarcerated.” [See: PLN, Apr. 2018, p.32].

The case was remanded to the district court and proceeded to a three-day trial before an eight-member jury. Two ASL interpreters sat in front of U.S. District Court Judge Michael H. Simon’s bench, facing Updike, and took turns signing throughout the trial.

Judy Shepard-Kegl, a linguistics expert and director of the Signed Language Research Lab at the University of Southern Maine, testified by video on behalf of Updike. Echoing the Ninth Circuit, she explained to the jury that an interpreter was necessary because English isn’t Updike’s first language.

“It is obvious Multnomah County has not followed the law,” argued Updike’s attorney, Daniel Snyder, during his closing statement. “It is obvious that they did not assist Mr. Updike.”

The jurors agreed, deliberating for only about an hour before returning a verdict against the county. They quickly determined liability, then spent most of the time trying to figure out the damages, according to juror Mark Freeman.

“A piece of paper with written words isn’t adequate,” Freeman said. “We wanted to make sure that message was sent and the county is educated.” Snyder expressed “hope that verdicts like this help to teach our government that they need to interact better with people who have disabilities.”

After the verdict was announced, Updike signed “Thank you, thank you” to the jury. His motions for attorney fees and costs remain pending. See: Updike v. City of Gresham, U.S.D.C. (D. Ore.), Case No. 3:13-cv-01619-SI. 


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Related legal case

Updike v. City of Gresham