New Jersey lawyer focusing on special education law and employment law


Does ADA Require Trained ASL Interpreters Prior to Arrest?

In January 2006, the Department of Justice published an informative pamphlet, “Communicating with People Who Are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers.”

The purpose of the pamphlet was to inform and instruct law enforcement agencies of their obligations under the Americans with Disabilities Act when dealing with deaf and hard of hearing individuals. For example, if a deaf person’s primary means of communication is sign language, the police department may be required to provide a trained sign language interpreter to facilitate effective communication. If a sign language interpreter is required, it must be provided at no cost to the deaf person.

For obvious reasons, a family member or friend should not act as an interpreter. (See Commonly Asked Questions about The Americans with Disabilities Act and Law Enforcement.) After all, family and friends have personal and emotional attachments; and they may either misinterpret what is being said or signed; or they may not interpret everything that is conveyed in context.

The pamphlet also provides other guidance, such as not covering your mouth when speaking to someone who is deaf or hard of hearing; talking in a well-lit area; not chewing gum when speaking; and so forth. For those of us who are deaf and/or hearing impaired, and for those of us who have experience working with the deaf and hearing impaired, all of this is common sense. In the legal world, these are all reasonable accommodations.

On the back of the pamphlet, the Department of Justice explains that an interpreter is not required under certain circumstances. One such example is when

An officer responds to an aggravated battery call and upon arriving at the scene observes a bleeding victim and an individual holding a weapon. Eyewitnesses observed the individual strike the victim. The individual with the weapon is deaf. Because the officer has probable cause to make a felony arrest without an interrogation, an interpreter is not necessary to carry out the arrest.

A recent situation involving the police and a deaf person raised issues of whether a trained interpreter was required. Seremeth v. Bd. of County Commissioners Frederick County (4th Cir., March 12, 2012).

Robert Seremeth, his parents, and his four children are all deaf. Their primary means of communication is American Sign Language (ASL).

Mr. Seremeth and his family live in Maryland where the county has a contract that requires an emergency ASL interpreter to arrive at the crime scene within one hour.

On one cold night in 2008, Mr. Seremeth had an argument with one of his children about going to bed. The child ran away from home, and Mr. Seremeth her in less than 30 minutes. Subsequently, the child called her mother via videophone; and the mother then called 9-1-1 to report allegations of child abuse. The mother also told the 9-1-1 operator that the family is deaf and there were no weapons at the house.

HandcuffsWhen the police arrived, they handcuffed Mr. Seremeth behind his back and made him kneel outside on the ground without a coat or even a pair of shoes.

A police officer with basic ASL training arrived at the scene to act as interpreter. But the officer was not fluent in ASL and could not make much headway. Mr. Seremeth’s father (who is also deaf) attempted to act as interpreter as well.

After approximately an hour, the police determined that no child abuse took place and let Mr. Seremeth go.

The police never put in a call for a trained, fluent interpreter.

As a result of having his hands cuffed behind his back, which prevented him from communicating with the police, and as a result of the communication issues that ensued, Mr. Seremeth alleged that he suffered “‘emotional issues’ and ‘persistent anger.’” Mr. Seremeth filed suit in federal court against the police officers and the county under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

The United States District Court for the District of Maryland ruled in favor of the police officers and the county, finding that Mr. Seremeth was not a “qualified individual with a disability” under the Americans with Disabilities Act. Equally surprising, the district court also determined that Mr. Seremeth “adequately participated” in the police investigation that led the police to determine that no child abuse occurred. In any case, an ASL interpreter was not required at the scene since Mr. Seremeth was neither arrested nor brought to the police station.

Mr. Seremeth appealed and lost again. The Fourth Circuit held that the police officers acted reasonably in handcuffing Mr. Seremeth according to standard operating procedure because they could not rely on a telephone allegation that Mr. Seremeth was unarmed or that there were no weapons in the house.

I think the court was correct in determining that where there are exigent circumstances–such as responding to a domestic dispute call–reasonable accommodations may not be required. Assuming that a crime was taking place, it would not be reasonable to wait for an ASL interpreter to arrive before the police started knocking on Mr. Seremeth’s door. That is consistent with the Department of Justice’s pamphlet, as discussed above.

However, the court also determined that “it was reasonable” to call in an ASL trainee to facilitate communication. In the court’s words:

It was reasonable even though these accommodations were not best practices—practices that in other circumstances could be evidence of a failure to reasonably accommodate. The accommodations afforded to Seremeth by the deputies were reasonable given their overwhelming need to obtain information quickly to protect themselves and others from possible violence. The further accommodations requested [...] would have been unreasonable under the circumstances.

The court’s wording is very unusual in the light of the facts that transpired. Since Mr. Seremeth was handcuffed behind his back, and since no one else in the house was considered threatening or dangerous, it seems that the next best step was to call in a trained interpreter so that both the police officers and Mr. Seremeth can communicate with each other effectively and get to the bottom of things. The 9-1-1 operator and the police officers at the scene knew in advance that Mr. Seremeth and his family all communicated via ASL. So, why not call in a trained ASL interpreter to the scene to conduct a complete investigation and resolve the situation?

The court did not clearly explain why calling in a trained interpreter to the scene would have been unreasonable even if there was no arrest. This is a very strange position to adopt, one which may have very serious consequences in the future. It is a position I would like to think that courts in other Circuits will disagree with.

A full and complete police investigation cannot be conducted without thoroughly interviewing witnesses and suspects. If all of the witnesses or suspects can only communicate via ASL–as was the case here–then it makes sense to get a trained ASL interpreter at the scene. The failure to obtain a trained, neutral ASL interpreter at the scene to facilitate communication could result in a wrongful arrest. It could also result in an unsolved crime that might otherwise been easily solved with the assistance of a trained ASL interpreter on the scene.

Note: Thanks to Siouxsie for telling me about this case.

Be Sociable, Share!

    There are 2 comments. Add Yours.

    Therese Montuori —

    Does this include family members who were involved in a criminal act and cannot speak English in the state of NJ?

      Matthew Stoloff, Esq. —

      Take note that the Seremeth case involved a deaf person whose primary means of communication is American Sign Language. Additionally, this is a Fourth Circuit opinion, and New Jersey is in the Third Circuit.

      Individuals in New Jersey who have limited English skills and have been suspected of a criminal offense have a right to an interpreter. One case that clearly establishes the right to a foreign language interpreter in a municipal court proceeding is State of New Jersey v. Rodriguez, 682 A.2d 764 (NJ Sup. Ct. 1996).

      For more general information about the right to an interpreter, have a look at this informative Q&A from Legal Services of New Jersey.