Courtesy of James R. Touchstone, Esq., and Keith F. Collins, Esq.
On August 31, 2017, the Ninth Circuit Court of Appeals ruled that a suit could proceed that alleged an Oregon county jail discriminated against a deaf inmate by failing to provide an American Sign Language (“ASL”) interpreter during his pretrial detention. The Court held that a reasonable jury could find that by not providing a deaf inmate with an ASL interpreter, the county was “deliberately indifferent” to the inmate’s need for an accommodation in violation of the Americans with Disabilities Act (“ADA”).
Plaintiff David Updike, a deaf individual since birth, was arrested on January 14, 2013 and detained in the Multnomah County Detention Center, a county jail facility in the State of Oregon. Updike had trouble communicating with jail staff using written English because ASL is his preferred form of communication. Using sign language, Updike signed to jail officials his need for an ASL interpreter, but was denied the request despite the fact that the County had a contract with an ASL interpreter service. Updike repeated this request to a jail nurse, but he was not provided one. Jail staff also denied Updike a computer, a Text Telephone (“TTY”) device, video relay services, and a pen and paper to facilitate communication, and staff did not provide closed captioning on the jail television Updike watched while detained. At his arraignment, the court failed to provide Updike an interpreter, so his arraignment was postponed until the next day when an interpreter was finally provided.
Updike filed suit in federal court, claiming among other things, that the County violated the ADA by denying him an ASL interpreter while detained in county jail. The district court granted the County’s motion for summary judgment, and Updike appealed.
In finding that the district court erred in granting summary judgment, the Ninth Circuit held that Updike pled adequate factual allegations describing the County’s failure to provide ASL interpreter services, and that a reasonable jury could find that this failure violated the ADA. The Court noted that the ADA requires public agencies to conduct a fact specific inquiry into whether providing a requested accommodation is reasonable in a given situation, and that there was no evidence the County undertook this inquiry.
The Court also found that there were disputed issues of fact whether the County’s failure to provide the requested accommodation was done with “deliberate indifference” since the County was clearly aware of Updike’s disability. The Court made clear, however, that it was not deciding that Updike was necessarily entitled to an interpreter as a matter of course, but rather that “upon notice of the need for an accommodation, a public entity must investigate what constitutes a reasonable accommodation.” Further, “if the public entity does not defer to the deaf individuals request, then the burden is on the public entity to demonstrate that another effective means of communication exists or that the requested auxiliary aid would otherwise not be required.”
HOW THIS AFFECTS YOUR AGENCY
While the Court ruled that the County did not necessarily violate the ADA, and that the lawsuit could proceed on this issue, it did state that “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. An ASL interpreter will often be necessary to ensure communication with a deaf person who has become enmeshed in the criminal justice system.”
Law enforcement agencies should be cognizant of this issue and their obligations under the ADA and state law concerning a person with disabilities in their custody. In consideration of an apparent hearing disability, an inquiry must be made to determine whether an individual requires an ASL interpreter to communicate effectively. This inquiry should take into account the arrestee’s preference and ability to communicate effectively through alternative means, such as writing or a TTY device. Law enforcement agencies are encouraged to consult with their legal advisors when confronted with these complex legal issues.
As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446 – 1400 or via email at firstname.lastname@example.org [for James Touchstone] or email@example.com [for Keith Collins].
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 Updike v. Multnomah Cty., 2017 U.S. App. LEXIS 16761 (9th Cir. Or. Aug. 31, 2017)