Federal law provides a mandatory minimum sentence of five years for a person who uses or carries a firearm during a “crime of violence.” In Delligatti v. United States (No. 23-825), the Supreme Court addressed whether a crime of omission involves the “use” of physical force, thus subjecting a defendant to the sentencing enhancement. A 7-2 Court held that it does.
Salvatore Delligatti is an associate of the Genovese crime family. Delligatti had been hired by a gas station owner to take out a neighborhood bully and suspected police informant. Delligatti, in turn, recruited a local gang to carry out the job and provided them with a gun and a car. Unfortunately for Delligatti, the job was thwarted twice, once when the gang abandoned the plan because there were too many witnesses present, and second by the police, who had discovered the plot. Delligatti was charged with multiple federal offenses, including one count of using or carrying a firearm during a “crime of violence” pursuant to 18 U.S.C. § 924(c).
Section 924(c) states that an offense qualifies as a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against a person or property of another.” To determine whether an offense falls within Section 924(c), courts employ the so-called categorical approach, asking whether the offense in question always involves the use, attempted use, or threatened use of force. The Government argued that Delligatti’s offense met this requirement because he had committed attempted second-degree murder under New York law. Before trial, Delligatti moved to dismiss his Section 924(c) charge arguing the Government could not establish a predicate crime of violence. The District Court disagreed, holding that there “can be no serious argument” that attempted murder is not a crime of violence. A jury convicted Delligatitti on all counts and he was sentenced to 25 years of imprisonment.
On appeal to the Second Circuit, Delligatti argued that New York’s second-degree murder statute fell outside Section 924(c)’s elements clause because it could be committed either by an affirmative act or by an omission. But the Second Circuit affirmed his conviction, holding that causing (or attempting to cause) bodily injury necessarily involves the use of physical force, even if the injury is caused by an omission. The Supreme Court granted certiorari to decide whether an individual who knowingly or intentionally causes bodily injury or death by failing to take action uses physical force within the meaning of Section 924(c).
Justice Thomas, writing for the majority, held that precedent, congressional intent, and logic refuted Delligatti’s challenge to his conviction. First precedent: In United States v. Castleman (2014), the Court interpreted a statute that prohibited anyone convicted of misdemeanor domestic-violence crimes, which similarly requires the use of physical force, from owning a firearm. In Castleman, the Court held that it was “impossible to cause bodily injury without applying force,” and that this force can be applied directly or indirectly, such as sprinkling poison in a victim’s drink, even though sprinkling poison does not itself involve force. Put differently: whenever someone knowingly causes physical harm, he uses force for the purposes of the statute. (Indeed, Delligatti had conceded that it was possible to use violent force indirectly, such as “when a person tricks another into eating food that has aged to the point of becoming toxic.”)
Justice Thomas then rebuffed Delligatti’s contention that one does not use physical force against another through deliberate inaction. By way of further example, a car owner makes “use” of the rain to wash a car by leaving it out on the street, or a mother who purposefully kills her child by declining to intervene when the child finds and drinks bleach makes “use” of bleach’s poisonous properties. Thomas thus concluded that crimes of omission qualify as a Section 924(c) crime of violence because intentional murder is the prototypical crime of violence, and it has long been understood that “one could commit murder by refusing to perform a legal duty, like feeding one’s child.” He noted that there is a preference for interpretations of Section 924(c) that encompass prototypical crimes of violence over ones that do not. And, at the time of Section 924(c)’s enactment, the principle that even indirect causation of bodily harm involves the use of violent force was well-established in case law, treatises, and various state laws. This violent force could be accomplished with battery-level force, i.e., force satisfied by “even the slightest offensive touching,” or by deceit or other nonviolent means.
In dissent, Justice Gorsuch, joined by Justice Jackson, continued with the majority’s approach of reasoning by example, only this time concluding that Section 924(c) does not reach crimes of omission. He began by asking the reader to imagine “a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action, the lifeguard chooses to settle back in his chair, twirl his whistle, and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man.” But while the lifeguard may be guilty of any number of serious crimes for his failure to fulfill his legal duty to help the swimmer, the lifeguard’s inaction does not qualify as a “crime of violence.”
Justice Gorsuch reached this conclusion primarily through statutory interpretation. In his view, when Congress enacted Section 924(c), “to use” meant “to employ,” “to convert to one’s service,” or “to avail one’s self of” something, terms that imply action, not inaction, inertia, or nonactivity. In his view, the physical force needed to commit a crime of violence must be a physical act, as well as one that is violent (extreme and severe, as opposed to “mere touching” consistent with battery). So, in the lifeguard example, by remaining in his chair, the lifeguard does not employ “even the merest touching, let alone violent physical force.” And while Gorsuch acknowledged that crimes of omission can still be serious, he explained that Section 924(c) was not written to reach every felony found in the various state codes, so the Court should not stretch the statute’s terms to reach crimes of inaction, inertia, or nonactivity. He also pointed out that when Congress was considering defining crime of violence to require the use of physical force, a Senate report discussed the hypothetical of the operator of a dam who refused to open floodgates during a flood, thereby placing residents upstream in danger, and concluded that the dam operator would not be committing a crime of violence because he did not use physical force. Finally, Gorsuch pointed out that crimes of omission more naturally fit within another subsection of Section 924(c), which the Court held was unconstitutionally vague in United States v. Davis (2019), showing that Congress has had no difficulty addressing crimes of omission elsewhere.