A Fourth Circuit panel heard arguments Thursday over whether a North Carolina prison violated a deaf civil detainee’s First Amendment rights by not allowing him to use a videophone to contact people on the outside.
Thomas Heyer, who has been deaf since birth, first sued the Bureau of Prisons in 2011 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.
He was initially convicted of possessing child pornography and was imprisoned for 18 months in 2007 for violating the terms of his supervised release. Prosecutors then labeled Heyer a sexually dangerous person under the Adam Walsh Child Protection and Safety Act in 2008 and have since held him in civil custody in a federal correctional institution in Butner, North Carolina.
Andrew T. Tutt from the law firm Arnold & Porter represented Heyer in Thursday’s hearing before the Richmond-based appeals court. The arguments focused on the detainee’s First Amendment claims based on the prison’s refusal to provide access to a videophone, which Heyer says would help him better communicate with the outside world.
“Mr. Heyer has a First Amendment right to communicate with others beyond the prison walls,” Tutt told the court, adding that the Bureau of Prisons, or BOP, could “accommodate this right at little cost.”
After asking Tutt how he has been communicating with his client, U.S. Circuit Judge Diana Motz said Heyer now has the ability to communicate with others through different technology that was provided to him – including email and TTY, a text messaging system for the deaf and speech-impaired.
But the attorney responded that Heyer is still unable to connect with those who matter most to him, including other people in the deaf community and his brother, who he wants to teach sign language to.
“What looks like an attractive accommodation is like telling an English speaker that they can only make telephone calls to non-English speakers,” he said.
When Motz, a Bill Clinton appointee, asked whether the scope of Heyer’s rights under the First Amendment requires that he is able to communicate with everyone, Tutt conceded that wasn’t the case. But the attorney argued prisoners should be able to connect with family members and those “with whom conversations would be the most meaningful.”
“Individuals who are non-hearing form a community of shared experiences,” Tutt said, pointing out that Heyer has close relationships with other deaf individuals, including an ex-boyfriend he cannot reach using email and TTY. Adding to communication difficulties, the attorney said Heyer can only read and write at a third-grade level.
Heyer also claimed he had attended nine medical appointments between 2008 and 2013 without a translator present, leading to difficulty obtaining diagnoses and understanding directions for taking his medications. His attorney said the communication barrier resulted in seizures after Heyer misunderstood the instructions on refilling his blood pressure medication.
Heyer also argued that the BOP’s failure to provide a qualified interpreter left him unable to receive the treatment required by the Walsh Act to establish that he was no longer sexually dangerous and was fit to be released.
“Heyer is not a typical federal inmate,” said Justice Department attorney Mallory Brooks Storus, arguing on behalf of the BOP on Thursday.
“His current status and background are vital to the issue at hand,” she said, adding that Heyer “has an extensive history of sexually deviant behavior against children.”
Storus said the BOP made an individualized determination, due to his “disturbing background of sexual deviance,” to not provide the specific videophone technology to Heyer. Tutt later responded that he disagrees with Storus’ claim that the policy was individualized based on Heyer’s background, noting that other Walsh Act detainees are allowed to use videophones.
Speaking to the First Amendment claims, Storus said none of the Heyer’s immediate family members are deaf. She also told the panel that monitoring his videophone calls would drain prison resources.
Storus asked the judges to affirm a federal judge’s decision in the BOP’s favor that dismissed Heyer’s complaint.
After the judge originally granted summary judgement to the government in 2015, the Fourth Circuit vacated that decision in 2017 and remanded the case back to the lower court for trial.
The parties reached a settlement agreement on the eve of trial that resolved all claims except the First Amendment claim over videophone access. After a two-day bench trial, the judge found Heyer did not establish a First Amendment violation. After his motion for reconsideration was denied, Heyer again appealed to the Fourth Circuit.
Joining Motz on the Fourth Circuit panel Thursday were U.S. Circuit Judges Barbara Keenan and Henry Floyd, both appointed by Barack Obama. Motz and Floyd were on the panel that issued the 2017 decision and are now tasked with deciding the case again.