In Delligatti v. United States, No. 23–825 (Mar. 21, 2025), the majority opinion quoted Model Penal Code § 1.13(7) in holding that the knowing or intentional causation of injury or death, whether by act or omission, necessarily involved the use of physical force against another person that could constitute a crime of violence for purposes of imposing an enhanced sentence under 18 U.S.C. § 924(c)(3)(A).
Under § 924(c)(3)(A), also known as the “elements clause,” a person who used or carried a firearm during a “crime of violence” was subject to certain sentencing minimums, and an underlying criminal offense qualified as a crime of violence if it had as an element the use, attempted use, or threatened use of physical force against the person or property of another.
In Delligatti, the criminal defendant recruited several members of a street gang to kill a suspected police informant and provided them with a firearm; after his arrest, he was charged with several offenses, including one count of violating § 924(c)(3)(A). The indictment charged as a predicate crime of violence attempted murder under the violent-crimes-in-aid-of-racketeering (VICAR) statute, 18 U.S.C. § 1959(a)(5), under which the defendant could be held culpable for committing an underlying state or federal offense that constituted attempted “murder.” The government alleged that the defendant met this requirement by attempting second-degree murder under New York law.
The U.S. District Court for the Southern District of New York denied the defendant’s motion to dismiss, finding that a VICAR attempted murder predicated on a New York second-degree murder was a “crime of violence” under the “elements clause” in § 924(c)(3)(A). The U.S. Court of Appeals for the Second Circuit affirmed, rejecting the defendant’s position that a VICAR attempted murder fell outside the scope of the “elements clause,” finding that homicide under New York law could be committed by act or omission, and that omission-based crimes did not involve the “use of force.” The Second Circuit relied on a prior Supreme Court decision holding, in the context of a closely related statute, that the knowing or intentional causation of bodily injury necessarily involved the use of physical force, even when the defendant caused the harm by omission.
Writing for the majority, Justice Clarence Thomas affirmed the holding of the Court of Appeals, explaining that the principle that the knowing or intentional causation of bodily injury necessarily involved the use of physical force extended to cases in which an offender caused bodily injury by omission rather than action. The Court reasoned that a person could make “use” of something by deliberate inaction to cause harm, and pointed out as an example that a mother could be found to have purposefully killed her child by declining to intervene when the child found bleach and started drinking it such that the mother’s inaction could constitute a “use” of force. Meanwhile, at the time § 924(c)(3)(A) was enacted by Congress, Model Penal Code § 1.13(7) recognized that “‘acted’ included, where relevant, ‘omitted to act.’” Thus, the Court concluded, it could not adopt the defendant’s interpretation of § 924(c)(3)(A) without excluding “traditional and widely accepted definitions of murder and other prototypical violent crimes from the elements clause’s reach.”
Read the full opinion here.