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Fourth Circuit Holds Deaf Federal Civilly Committed Sex Offender Has First Amendment Right of Access to Point-to-Point Videocalls in BOP Prison

The appellate court ordered the district court to enter judgment in the plaintiff’s favor.

Court documents say Thomas Heyer is civilly committed as a sexually dangerous person pursuant to the Adam Walsh Act, 18 U.S.C. § 4248(a), (d)-(e) and held at the Maryland Unit of the Federal Correctional Institution in Butner, North Carolina, which only houses persons civilly committed under the Act.

Heyer has been deaf since birth and has very little ability to communicate in written or spoken English. Heyer communicates primarily in American Sign Language (ASL). Prior to his incarceration, Heyer’s interactions were primarily with other members of the American Deaf Community.

Heyer’s access to the deaf community while imprisoned and civilly committed has been limited. He was allowed to write letters, email, or use a teletypewriter (TTY) machine, all of which require the ability to use written English. He had been permitted in-person visits, but none were fluent in ASL.

Heyer filed a lawsuit against the BOP and its officials alleging denial of videocalls violated his First Amendment rights. Pursuant to a partial settlement in the case, the BOP installed a videophone unit and contracted to provide him access to Video Relay Services (VRS), which allowed him to communicate with a hearing person via an ASL translator who translated Heyer’s side of the conversation into spoken English. VRS did not provide videocalls that were point-to-point so that Heyer could communicate with a deaf person. There was a bench trial on that issue.

Washington, D.C. attorneys Andrew Tutt and Ian S. Hoffman of Arnold & Porter Kaye Scholer assisted Heyer on appeal.

The Fourth Circuit court of appeals noted expert trial testimony that the deaf community was a linguistic and cultural community. Persons born deaf face unique barriers to learning English and are more likely to become ASL users. Further, ASL has more in common with Chinese than English.

The court held that the district court erred when it determined that all four of the factors set out in Turner v. Safley, 482 U.S. 78 (1987), favored the BOP. The denial of videocalls was related to the legitimate penological interests of maintaining safety at Butner, protecting the public and defraying costs. But since Heyer had no alternative means of communicating with the Deaf community, the impact of providing the videocalls would be minimal and was a reasonable alternative to the ban. The court pointed out that immediate translation was not being required for foreign language telephone calls—even those made by international terrorists. Further, the equipment was already available and could be used for videocalls. A staff member was already required to monitor TTY calls and was not actually required for videocalls as they could be recorded. There was no evidence videocalls would cause other problems.

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Related legal case

Heyer v. United States Bureau of Prisons