Delligatti v. United States, 604 U.S. 423

Background

Salvatore Delligatti, associated with the Genovese crime family, was convicted for using a firearm during and in relation to a “crime of violence” after attempting to have a suspected police informant murdered by recruiting gang members and providing them a loaded gun.
Delligatti’s predicate “crime of violence” was attempted murder under the federal VICAR statute, based on New York’s second-degree murder law, which allows conviction by act or by omission (failure to perform a legal duty).
Delligatti moved pre-trial to dismiss the §924(c) charge, arguing that because New York’s murder-by-omission could occur without the use of "physical force," it did not qualify as a "crime of violence" under §924(c)(3)(A).
The Second Circuit affirmed the conviction, holding New York attempted second-degree murder qualifies as a crime of violence for §924(c) purposes, even when based on omission.
The Supreme Court granted certiorari to determine if knowingly or intentionally causing bodily injury or death by omission (failing to act) involves the "use of physical force" for §924(c)(3)(A).

Issues

Issue	Delligatti's Argument	Government's Argument	Held
Does causing death by omission qualify as "use of physical force" under §924(c)(3)(A)?	Omission-based murder does not require the use of force; thus, it fails §924(c)’s elements clause.	Any knowing or intentional causation of injury/death—by act or omission—necessarily involves the use of physical force.	Yes. The Court held that causing injury or death—by act or omission—is the "use" of "physical force" within §924(c)(3)(A).
Whether the elements clause in §924(c) covers crimes that can be committed by omission	Omissions do not involve the active employment of force as required by the statute.	Omissions count as the use of force if they result in bodily injury/death intentionally or knowingly.	The elements clause encompasses omission crimes when there is intentional harm.
The distinction between "use" of force by action versus deliberate inaction	One cannot "use" force by mere inaction; the statutory meaning of "use" requires active conduct.	Deliberate inaction can constitute "use," e.g., a mother intentionally letting a child drink bleach.	The "use" of force can occur via omission where there is intent to cause harm.
Role of ordinary meaning and common law in interpreting “crime of violence”	Statute's definition controls; common law or ordinary meaning about prototypical violent crimes is irrelevant if not in the text.	Elements clause should cover intentional murder and battery, consistent with traditional understandings of “crimes of violence.”	Ordinary meaning and historical practice support including omission-based violent crimes—thus, intentional murder by omission fits the clause.

Key Cases Cited

United States v. Castleman, 572 U.S. 157 (2014) (causing bodily injury, even indirectly, involves the use of force under gun statutes)
Stokeling v. United States, 586 U.S. 73 (2019) (violent force under ACCA includes the force needed for common-law robbery)
Johnson v. United States, 559 U.S. 133 (2010) (distinguished between battery-level and violent force for "physical force" requirement)
United States v. Davis, 588 U.S. 445 (2019) (held the residual clause of §924(c) is unconstitutionally vague)
Burrage v. United States, 571 U.S. 204 (2014) (actual causality requires a “but for” test for criminal liability)
Bailey v. United States, 516 U.S. 137 (1995) (use means active employment in §924(c) context)
Borden v. United States, 593 U.S. 420 (2021) (discussed the meaning of "against the person" in violent felony definitions)