No "Defense of Others" Defense in Justina Pelletier Hospital Hacking Case

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From U.S. v. Gottesfeld, decided earlier this month by the First Circuit (Judge Kayatta, joined by Chief Judge Howard and Judge Lynch):

In March 2014, Martin Gottesfeld and others committed a "Distributed Denial of Service" cyberattack against Boston Children's Hospital and Wayside Youth and Family Support Network, causing both to lose their internet capabilities for three to four weeks. Gottesfeld targeted Boston Children's and Wayside because of their role in caring for Justina Pelletier, a child whose medical condition and treatment were at the center of a custody dispute that received national attention.

Gottesfeld publicly admitted responsibility for the attacks. He was subsequently charged with intentionally causing damage to a protected computer, 18 U.S.C. § 1030(a)(5)(A), and conspiring to do the same, id. § 371. After an eight-day trial, Gottesfeld was convicted on both counts and sentenced to 121 months' imprisonment, to be followed by three years of supervised release….

Gottesfeld challenges the district court's order precluding him from raising at trial the affirmative defense known as "defense of another." A district court "may preclude the presentation of [a] defense entirely" if the defendant does not produce sufficient evidence "to create a triable issue." …

"Use of force is justified when a person reasonably believes that it is necessary for the defense of … another against the immediate use of unlawful force," so long as the person "use[s] no more force than appears reasonably necessary in the circumstances."

Gottesfeld sought to argue at trial that his cyberattack on Boston Children's and Wayside was justified because it was necessary to protect Pelletier from remaining under the care of those institutions. In support of this theory, he primarily pointed to news and television reports stating that Pelletier was being "abused" and "tortured" under the care of Boston Children's and Wayside; that Pelletier's custody proceeding might be "compromised"; and that Pelletier's parents had contacted the Federal Bureau of Investigation and other law enforcement agencies regarding Pelletier's plight to no avail.

This evidence would perhaps support a finding that Gottesfeld subjectively believed Pelletier was at some risk of harm. But he marshals no case to support a finding that he reasonably believed that she faced the threat of immediate unlawful force. To the contrary, he knew that her custody was authorized by a court order. Furthermore, even if he thought that some individual or group of individuals were using or threatening to use unlawful force, that would have provided no justification for Gottesfeld to take hostage thousands of other persons' internet connections.

{To the extent Gottesfeld contends that he reasonably believed that Pelletier's treatment during her custody was unlawful, that argument is waived multiple times over: Gottesfeld did not clearly assert it before the district court and only now tries to develop it in his reply brief. Even were we to consider this argument, public commentary and opinion comparing Pelletier's treatment to torture—which is all he cites to support this claim—does not alone support a finding that he reasonably believed that she was in fact being subjected to torture. To rule otherwise would be to empower every citizen with the ability to simultaneously incite and immunize criminal conduct by another even as a judicial tribunal is available to hear the claims of harm.}

Nor could a jury have found Gottesfeld's chosen methods reasonably necessary. The issues of Pelletier's custody and treatment were before a court, and all allegations known to Gottesfeld were known to law enforcement authorities. To the extent that Gottesfeld viewed these alternative courses of action as unlikely to succeed, we have previously explained that a defendant's likely inability "to effect the changes he desires through legal alternatives does not mean, ipso facto, that those alternatives are nonexistent." …