by Lonnie Burton

On February 14, 2017, Division Three of the Washington State Court of Appeals held in a 2-1 ruling that the Department of Corrections (DOC) was not liable for an assault suffered by a man while he was serving his term of community supervision following his release from custody. The decision affirmed a superior court order granting summary judgment to defendant DOC and dismissing the suit.

This case began in January 2011 when Ahmet Hopovac was released from the Grant County jail after completing his sentence for burglary and other crimes. As part of his sentence, Hopovac was to serve a term of community supervision, which included a stipulation that he remain within the confines of Grant County and not possess a firearm. Hopovac asked his community corrections officer (CCO) to transfer his supervision to Idaho where he could live and work with his father. Idaho denied the transfer because Hopovac failed to submit the proper paperwork.

In April 2011, Hopovac was involved as a witness in a burglary that involved a Pocos Locos gang member. The gang member told Hopovac and his friend, Mr. Jones, that he had just shot someone and showed him the gun he used. The gang member asked Jones to hide the gun for him, which he did. Jones later went to the police and told than everything he knew.

Jones started receiving threats from Pocos Locos gang members for informing on them. The gang suspected Hopovac also had a role in going to the police since he was present at the house with Jones and was Jones' friend. Hopovac became concerned for his safety after gang members started following him. At his next meeting with his COO, Hopovac requested an emergency transfer to Idaho due to the situation. The CCO refused to do so, and instructed Hopovac to go to the police. Fearing reprisal, Hopovac refused to go to the police.

Several days later, Hopovac was abducted by gang members, driven to a house, and brutally assaulted. He had two toenails pulled off, and had several fingers chopped off with an axe.

Hopovac sued DOC for "tortious conduct." DOC moved for summary judgment, arguing it had no legal duty to protect Hopovac from assault while he was on community supervision. The trial court agreed, granted summary judgment for DOC, and Hopovac appealed.

In affirming the trial court, the Court of Appeals that, in general, "there is not duty to protect others from the criminal acts of third parties," but that an exception to that rule "exists where the defendant is in a special relationship with eitherthe third party or the foreseeable victim of the third party's conduct."

To that end, the court found that DOC did not deprive Hopovac of "normal opportunities" to protect himself. Among the ways in which Hopovac could protect himself absent his rejected request to transfer to Idaho, were Hopovac's right to "carry a weapon (other than a gun), move anywhere within Grant County, and report the threats to law enforcement," the court found.

The appeals court therefore held that because Hopovac had the ability to protect himself, he and DOC did not have the "special relationship" required to invoke the exception to the general rule exempting DOC from liability from the wrongful acts of a third party.

The judgment of the trial court was therefore upheld and Hopovac's case dismissed. It is unclear if a petition for review was filed with the Washington Supreme Court. See: Hopovac v. State of Washington, No. 33992-1-III (C.A. Div. III WA), February 14, 2017.

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