Wednesday, February 15, 2017

When probation can't protect you from revenge

Torture and grammar at center of Washington Court of Appeals case

Posted By on Wed, Feb 15, 2017 at 1:01 PM


Ahmet Hopovac had two toenails plucked from his feet and three fingers severed with an axe by gang members. He says the Washington Department of Corrections is partially responsible because terms of his probation meant he couldn't protect himself and officers said they couldn't help him. In an opinion released Tuesday, the Washington State Court of Appeals disagreed.
Judge George Fearing
  • Judge George Fearing

But in a partial dissent Chief Judge George Fearing zoomed in on the majority's interpretation of whether a plural noun (in this case "opportunities") can also work in the singular, legally speaking. You can read the opinion, and Fearing's dissent, at the bottom of this post.

Here is what went down:

Hopovac was released from Grant County jail in 2011 following a sentence for burglary, theft and forgery. He was barred from leaving Grant County and from possessing a gun, among other restrictions, as part of his probation. Hopovac had no home in Washington, and requested to transfer his corrections supervision to Idaho, where he would live with family. He had a line on a job, too, according to court documents.

Idaho denied his request, in part, because corrections officials in Idaho did not receive all the necessary paperwork (Hopovac had also used drugs and missed an appointment with his probation officer, which are violations of his supervision).

Hopovac resubmitted the transfer request, this time including the appropriate paperwork, but in the meantime, he got caught up in some gang drama.

In April, Hopovac was at a friend's house when a member of the Pocos Locos gang showed up. The gang member said he just shot someone and asked to stash the handgun at the house, court documents say. The gang member gave Hopovac's friend some meth as a thank-you.

Hopovac's friend then went to the police and reported the shooting, and the case gained media attention. Suspecting Hopovac had a role in snitching to the police, gang members started following him, court documents say. At his next probation check-in, he asked for help.

A supervisor told Hopovac that she could submit an "expedited transfer request" to Idaho, but would first need a police report. She told him to go to the police to get the report. But Hopovac told her that he couldn't go to the police. Gang members were following him, and that would be too dangerous. The supervisor could not help him.

Weeks later, while Hopovac was walking into a gas station to buy cigarettes, he was pulled into a backseat of car, taken to a house and beaten by a group of men, assumed to be Pocos Locos gang members. They wanted to know who ratted to the police and suspected Hopovac was involved.

"They then pulled off two of Mr. Hopovac's toenails with a pair of pliers," the Court of Appeals opinion says. "A man then told Mr. Hopovac to hold his hand. Mr. Hopovac did so, and the man brought an axe down on Mr. Hopovac's hand, partially severing several fingers."

Doctors were able to reattach the digits later at the hospital, but Hopovac has never regained full function of his hand or arm, documents say.

Hopovac sued the Department of Corrections and the supervisor arguing that they had an obligation to protect him because terms of his probation prevented him from protecting himself. Hopovac could not leave Grant County, could not possess a gun and had nowhere to go. Under state law, the government has an obligation to protect those under their supervision.

The Court of Appeals, in upholding the trial court's dismissal of the lawsuit, acknowledges the DOC's obligation to protect incarcerated individuals, but says the question of whether that same protection extends to those under community supervision has not been explored.

Ultimately, two out of three judges decided that the DOC does not have a responsibility to protect Hopovac in this situation. Their decision hinges on Hopovac's other "normal opportunities" for protection. The distinction, for the majority, lies in the singular and the plural — one versus many opportunities. Hopovac, they decided, only presented legit evidence of one opportunity.

It is on that point where Judge Fearing disagrees. In his dissent, Fearing grapples with his own "sheltered, privileged life," and his "formerly "athletic frame" and narrows in on the grammatical distinction, or lack thereof, between singular and plural language in state law.

"Fleeing one's town to avoid violence need not be an ordinary step actually taken by those in danger," Fearing writes. "Running need not be a typical measure exercised. Instead, skedaddling need only be an ordinary possibility."

He continues:

"Because of a sheltered, privileged life and because of a large, formerly athletic frame, I have never needed or sough protection from a mob, a gang, an angry spouse, or anyone wishing to physically harm me. Nevertheless, from my decades of reading newspapers, I know that Mafia snitches must often escape their respective communities and assume another identity. ... Thus, a parole condition eliminating one's liberty to escape to another country or beyond may interfere with a normal opportunity for protection."

Fearing then points to the state statute that basically says singular words in state law are interchangeable with plural words, and vice versa. Invoking John Steinbeck and his traveling companion, Charley the standard poodle, and Catcher in the Rye protagonist Holden Caulfield, Fearing says that ignoring this provision, would be "silly."

He suggests, as an example, considering the rule written in the singular form — "opportunity." By the majority's reasoning, Fearing argues, the government could only be held liable for denying one opportunity. "So the custodian would avoid liability the more the custodian deprives the ward of means of protection."

Hopovac Fearing Opportunities by MitchRyals on Scribd


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