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A Case of Torture and Grammar

Sometimes justice is just weird.

Tuesday morning an appeals court in Washington State ruled in a case involving two toenails removed with pliers, three fingers severed by axe, and whether the word “opportunities,” in the law, must be construed strictly in the plural.

In terms of legal ramifications, the case concerns the duty of protection owed by a department of corrections to someone under its supervision. In terms of legal writing, the case shows the power of literary reference and the well-turned phrase, featuring a judge who wishes appellate courts would hire expert writers to review opinions and make sure they’re readable. His opinion in this case—a partial dissent—most surely is.

In January 2011, Ahmet Hopovac was released from jail in Grant County, Wash., after serving time for burglary, theft and forgery. Under the terms of his release, Hopovac was forbidden to leave Grant County without permission. Nor could he possess a gun. Hopovac reported to community supervision, as required. He asked a Department of Corrections officer if his supervision could be transferred to Idaho, so that he could live with his family. The officer said they’d talk more the next day. The next day, Hopovac didn’t show.

An arrest warrant went out. Hopovac was arrested about two months later. He admitted using methadone, methamphetamine and marijuana. He renewed his request to leave Grant County, saying he was homeless in Washington but had a job waiting across the state line. After working through some paperwork issues, the DOC officer submitted a transfer request to Idaho.

While that request was still pending, Hopovac met with some seriously bad luck. In April he was at a friend’s house. A member of the Pocos Locos gang showed up. The gang member said he had just shot someone. He asked Hopovac’s friend to hide the gun. The friend agreed. Later, the friend went to police and reported what had happened.

Gang members began threatening the friend. Hopovac figured he was in danger, too, because he’d been at the house. When gang members began following Hopovac, he went to the Department of Corrections for help. I have to get out of Washington, he told a DOC supervisor. She told him that in order to request an expedited transfer, she would need a police report on all of this. She instructed him to go get one. He told her that gang members were following him. He couldn’t go to police. That would look bad. She said there was nothing she could do.

The next month gang members drove up while Hopovac was walking to get cigarettes. They put him in a car, took him to a house and beat him. With pliers they pulled out two of his toenails. One member told Hopovac to hold out his hand. The gang member brought down an axe, removing index, middle and ring fingers.

Doctors later reattached Hopovac’s fingers. Hopovac sued the DOC, for failing to protect him.

The law in Washington state imposes certain obligations on corrections officials to protect those under their supervision. Specifically: “One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a … duty [to take reasonable action to protect the other person from unreasonable risk of physical harm].”

In its 2-1 opinion issued today, the two judges in the majority seized on one word: “opportunities.” Hopovac was deprived of the opportunity to leave the county, the majority wrote. That is one opportunity, not multiple opportunities. He still had other ways to protect himself, from moving around within the county to carrying a weapon (provided the weapon was not a gun), the majority wrote.

His lawsuit should therefore be dismissed, the majority concluded.

The appellate court’s chief judge, George Fearing, did not agree.

Fearing wrote:

“Because of a sheltered, privileged life and because of a large, formerly athletic frame, I have never needed or sought 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.”

He added:

“The criminal justice system depends extensively on the cooperation of informants. Although Ahmet Hopovac may not have been an informant, a criminal gang considered him an informant. Public policy should encourage state protection of informants or purported informants facing the wrath of a mob, about whom the informant tattled.”

Fearing then tackled the majority’s reading of the word “opportunities.” In statutory construction, Fearing wrote, words importing the plural may also apply to the singular, and vice-versa.

He wrote:

“The majority's reading the plural to exclude the singular would lead to silly consequences. A motel might post a placard that declares: ‘Please no pets.’ John Steinbeck could sleep with Charley as long as he traveled with only Charley. Steinbeck would have brought only one pet, not pets. A tavern may post a sign that reads: ‘No minors allowed.’ According to the majority, Holden Caulfield could enter the tavern if he is the only underage patron.”

When Fearing ran for re-election to the court last year, he said “appellate courts should hire an excellent writer, without any legal background, to review and edit decisions for their readability,” and he pledged: “I will write opinions in language understandable to lay readers.”

Today’s opinion would suggest he is a judge true to his word.

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