Ahmet Hopovac v. State of Washington
197 Wash. App. 817
| Wash. Ct. App. | 2017Background
- Hopovac, released from jail on community supervision, was subject to standard conditions including remaining in Grant County and not possessing firearms.
- He asked for transfer to Idaho due to homelessness and safety concerns; Idaho initially denied transfer for lack of documents and recent supervision violations; DOC later resubmitted a transfer request.
- After witnessing a gang member at a friend’s house and learning the friend reported a shooting, Hopovac began fearing retaliation; he told a community corrections supervisor he felt unsafe and asked for help but was told DOC needed a police report and could do nothing without it.
- Hopovac failed to report several times, DOC issued a warrant and withdrew the transfer request; later he was abducted and brutally assaulted by gang members, suffering serious hand injuries.
- Hopovac sued DOC and the supervisor for tortious conduct; trial court granted summary judgment for DOC on the ground it owed no duty to protect him; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOC owes a duty under Restatement § 314A(4) to protect felons under community supervision from third-party intentional harms | Hopovac: DOC’s custody and supervision conditions deprived him of normal opportunities for protection (e.g., ban on leaving county, no firearm), creating a special relationship and duty | DOC: § 314A(4) applies only where custody deprives normal opportunities for protection; standard community conditions do not eliminate a felon’s normal protective opportunities | Held: No duty under § 314A(4); standard community custody conditions do not deprive supervised felons of their normal opportunities for protection; summary judgment affirmed |
| Whether “custody” in § 314A(4) includes legal/control custody (not just physical incarceration) | Hopovac: DOC’s legal authority and supervision constitute custody | DOC: argues custody language might be limited to physical custody, but appellate majority treats legal custody as sufficient | Held: Legal authority to control is within scope of “custody,” but custody alone is not dispositive without deprivation of normal protective opportunities |
| Whether prohibition on firearm possession supports deprivation of protection | Hopovac: firearm ban limited his ability to protect himself | DOC: firearm prohibition stems from felony status, not DOC condition, so it did not further deprive him | Held: Ban on firearms did not create a deprivation because felony conviction already prohibited guns as a matter of law |
| Whether restriction to remain in Grant County deprived normal opportunities for protection (i.e., fleeing) | Hopovac: inability to leave county prevented a normal and viable protective option (flight) | DOC: travel restriction did not eliminate the array of other protection options within the county; plurality requires deprivation of the opportunities (plural) | Held: Majority — remaining in county did not, as a matter of law, deprive Hopovac of his normal protective opportunities; concurrence — travel could be a normal opportunity and should go to a jury (dissent in part) |
Key Cases Cited
- Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192 (1997) (no general affirmative duty to protect others from third-party criminal acts)
- Shea v. City of Spokane, 17 Wn. App. 236 (1977) (adopting Restatement § 314A(4); jailer’s control over prisoner creates duty to provide protection/medical care)
- Gregoire v. City of Oak Harbor, 170 Wn.2d 628 (2010) (discussing government duties to ensure safety of incarcerated individuals)
- Kaltreider v. Lake Chelan Cmty. Hosp., 153 Wn. App. 762 (2009) (existence of legal duty is element of negligence; court reviews duty de novo)
- Jacobs v. Ramirez, 400 F.3d 105 (2d Cir. 2005) (recognizing parolees may remain in a form of custody for certain legal analyses)