Causing Physical Harm Always Involves “Use of Force”

In Delligatti v. United States, 604 U.S. ____ (2025), the U.S. Supreme Court held that the knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the “use” of “physical force” against another person within the meaning of 18 U.S.C. § 924(c)(3)(A).

Facts of the Case

The federal statute at issue, Title 18 U.S.C. §924(c), subjects a person who uses or carries a firearm during a “crime of violence” to a mandatory minimum sentence of five years. Under Section 924(c)(3)(A), a “crime of violence” is defined as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

To determine whether an offense falls within §924(c)(3)(A)’s “elements clause,” the Supreme Court applies the categorical approach. Under that approach, the Court does not examine the defendant’s actual conduct. Instead, it asks whether the offense in question “always” involves the use, attempted use, or threatened use of force. If the offense can be committed without the use, attempted use, or threatened use of force, it is not a crime of

violence under the elements clause.

In this case, Salvatore Delligatti was convicted of violating §924(c) after he recruited gang members to kill a suspected police informant and gave them a loaded revolver to carry out the job. Prior to trial, Delligatti moved to dismiss his §924(c) charge on the ground that the charge lacked the required predicate crime of violence; however, the District Court denied his motion.

Delligatti’s indictment charged him with attempted murder under the violent-crimes-in-aid-of-racketeering (VICAR) statute, §1959(a)(5), which required proof that Delligatti had attempted second-degree murder under New York law. Delligatti argued that a VICAR offense predicated on New York second-degree murder is not a crime of violence under §924(c)’s elements clause because homicide under New York law can be committed by omission, defined as the failure to perform a legal duty.

The Second Circuit Court of Appeals affirmed the District Court’s conclusion that New York attempted second-degree murder is a crime of violence for purposes of §924(c)(3)(A).

Supreme Court’s Decision

The Supreme Court affirmed by a vote of 7-2. According to the majority, the Second Circuit correctly held that causing bodily harm by omission requires the use of force.

In support of its decision, the Court cited United States v. Castleman, 572 U.S. 157 (2014), along with that ruling’s underlying logic. In Castleman, the Court held that under §922(g)(9)—a similar statute that prohibits anyone convicted of “a misdemeanor crime of domestic violence” from owning a firearm—“the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” In reaching that conclusion, the Court reasoned that it was “impossible to cause bodily injury without applying [the] force” needed to commit common-law battery and that “the knowing or intentional application of force is a ‘use’ of force” in that sense. 

Although Castleman addressed a different statute, the majority found that the same reasoning applied to §924(c). “To be sure, these two provisions arguably use the term ‘physical force’ to require different levels of force—battery-level force for §922(g)(9) and violent force for §924(c),” Justice Clarence Thomas wrote. “But, because both battery-level force and violent force may be applied indirectly, that difference is immaterial here.” The Supreme Court further found that because New York second-degree murder requires proof that the defendant intentionally caused the death of another person, it necessarily involves the use of physical force under §924(c).

The Supreme Court also rejected the argument that its rule in Castleman is unsound as applied to omissions.“It is perfectly natural to say that a person makes ‘use’ of something by deliberate inaction. A car owner, for example, can ‘use’ the rain to wash his vehicle simply by leaving it parked on the street,” Justice Thomas wrote. “And, a fugitive can ‘use’ the cover of darkness to hide by lying still at night. In the same way, a mother who purposely kills her child by declining to intervene when the child finds bleach and starts drinking it makes ‘use’ of the bleach’s poisonous properties to accomplish her unlawful end.”

The Court similarly rejected the argument that the phrase “against another” excludes crimes of omission. According to Justice Thomas, that phrase at most requires that another person be “the conscious object” of the force the offender uses. “Whenever an offender deliberately causes bodily harm by omission, he necessarily makes another person the conscious object of physical force,” he explained. “In the bleach example, the mother’s refusal to take away the bleach is not an accident, but rather a deliberate effort to make the child suffer the bleach’s poisonous effects. The mother thus uses force against her child.”

Finally, the Court noted that the ordinary meaning of the term “crime of violence” confirms that Congress meant for the elements clause to cover crimes of omission. Intentional murder is the prototypical “crime of violence,” and it has long been understood to incorporate liability for both act and omission, according to the Court.