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Fourth Circuit: Deaf North Carolina Prisoner Should be Allowed Direct Videophone Calls to Communicate with Deaf Community

The Fourth Circuit held that the district court errored in crediting Bureau of Prisons’ (BOP) testimony about the risks of point-to-point calls without considering the wealth of testimony about safety features that have managed those risks.

The court’s January 13, 2021, opinion was issued in an appeal brought by Thomas Heyer, who is civilly committed as a sexually dangerous prisoner in Federal Correctional Institution Butner in North Carolina, pursuant to the Adam Walsh Child Protection Safety Act of 2006. Heyer was born deaf and his primary form of communication is via American Sign Language (ASL).

Dr. Thomas Cokely testified as an expert on deafness, its effects on literacy, and its consequences for incarcerated and confined persons. He said deaf individuals often have only “survival” English skills, for example reading directions and signs.

ASL users communicate in three dimensions and make use of hand shapes, movements, locations, and palm orientations paired with “non-manual behaviors,88” such as nose wrinkling to indicate “grammatical functions.”

ASL is an entirely separate language with its own syntax and grammar. With TTY becoming obsolete in the digital era, deaf persons increasingly use videophones. They provide Video Relay Service (VRS) and point-to-point calls. VRS provides an intermediary between a deaf and non-deaf person to provide interpretation. Point-to-point provides direct contact between two deaf persons communicating via ASL.

BOP agreed to provide Heyer with VRS but not point-to-point calls. It cited a host of security issues. After holding a bench trial, the district court granted judgment in BOP’s favor. It found Heyer “failed to prove that BOP’s failure to install and provide videophone equipment violates the First Amendment.” Heyer appealed.

The Fourth Circuit agreed that BOP’s policy has as legitimate governmental interest, for point-to-point calls create a risk of sexual exploitation, a security concern within the prison, and a potential impediment to Heyer’s own rehabilitation. The court, however, found, that three factors of Turner v. Safely, 482 U.S. 78 (1987) were in Heyer’s favor and merited relief.

The district court erred in finding VRS was a suitable alternative because it rested upon Heyer’s ability to communicate with people beyond the prison walls rather than his interest in communicating with the deaf community. The district court further erred in finding Heyer had an alternative of using TTY, in-person visits, writing letters, and sending emails. Visits do not account for emergency communication needs and the others require a command of English that Heyer does not possess.

As to whether point-to-point calls will have a significant ripple effect on other prisoners, guards and resources, the Fourth Circuit found it would not. There was “substantial evidence that BOP already utilizes resource-efficient means of mitigating risks with these calls.”

Finally, any cost to provide point-to-point calls was de minimus. BOP already translates calls by prisoners in 60 different languages, its system allows for immediate termination of calls, and it has the ability to act on criminal activity.

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Related legal case

Heyer v. United States Bureau of Prisons