A 2024 appeal regarding a person who was found guilty of violence “by force,” though indirectly, was heard by the Supreme Court recently.

The High 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).”

The Justices voted 7-2 to deny the appeal.

Federal law (18 U.S.C. 924(c)) mandates that anyone who uses or carries a firearm during a “crime of violence” must serve a minimum of five years. The Supreme Court recently heard the case of Delligatti v. United States to rule on whether or not a crime of “omission” qualifies as using physical force, which may be used in sentencing a defendant.

The case revolves around the conviction of Salvatore Delligatti, an associate of the Genovese crime family, was accused and convicted of violating Title 18 U.S.C., section 924, which has a mandatory minimum sentence of five years for anyone carrying or using a firearm during a violent crime.

As outlined in the Court’s opinion, Delligatti was accused of being hired by the owner of a gas station in New York in 2014 to murder a “neighborhood bully” who was suspected of being a law enforcement informant. The opinion recounts that Delligatti hired a local gang and supplied them with a car and a gun for the attack.

But the planned job fell apart twice, first when the gang could not do their job due to many witnesses on the scene and again when the police uncovered the plan.

Delligatti was arrested and 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).” A crime of the violence under this section of the law qualifies as a felony if the crime “has as an element the use, attempted use, or threatened use of physical force against a person or property of another.”

The defendant was found guilty and sentenced to 25 years in prison.

After Delligatti’s conviction, his attorneys moved to dismiss his Section 924(c) charge. They argued that the Government could not prove “a predicate crime of violence.” However, the New York district court did not agree with this position, saying that as per law there “can be no serious argument” that any “attempted murder” is not a crime of violence.

The attorneys for the defendant then filed an appeal to the Second Circuit. They argued that in New York, the second-degree murder laws were not included in the Section 924 law since Delligatti’s actions amounted to acts “by omission” rather than “affirmative acts” and did not involve physical force. The Second Circuit denied this appeal, saying that attempting to cause “bodily harm” falls within the meaning of physical force in the law, whether the offense is committed by “affirmative act” or “omission.”

The issue thus clarified, the Supreme Court accepted the case 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).”

Judges determine if a crime falls within this section of the law by using a “categorical approach,” which refers to discussing and considering whether or not the offense included using, attempting to use, or threatening to use, force.

In oral arguments before the Supreme Court, attorneys for the government argued that Delligatti’s offense met the necessary requirements to be found guilty because he had “committed attempted second-degree murder” under New York law.

Supreme Court Justice Clarence Thomas wrote in the court’s majority decision that Delligatti’s appeal was not viable. Justice Thomas referred to the precedent set in the 2014 case United States v. Castleman, where the High Court ruled that it is “impossible to cause bodily injury without applying force,” and that such force can be used directly or indirectly. In the Delligatti case, the Justices decided the convicted man was using physical force by hiring a gang to commit acts and providing them with a weapon.

“It is impossible to deliberately cause physical harm without the use of physical force under §924(c),” wrote Justice Thomas in the ruling. “In United States v. Castleman, 572 U. S. 157, this Court held that under §922(g)(9)—which 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,” id., at 169. The Court’s reasoning proceeded in two steps. First, the Court found it “impossible to cause bodily injury without applying [the] force” needed to commit common-law battery. Id., at 170 (emphasis added). Second, the Court held that “the knowing or intentional application of force is a ‘use’ of force” in that sense. Ibid. (emphasis added).”

Justice Thomas noted that crimes of omission do qualify as a Section 924(c) crime of violence because “one could commit murder by refusing to perform a legal duty, like feeding one’s child.” The Justice noted that forms of violent force can be by “even the slightest offensive touching,” or by other nonviolent actions.

Justice Neal Gorsuch disagreed with part of the Justice’s majority decision, writing that this case did not “reach” the levels needed for crimes of omission. In his written dissent, Justice Gorsuch used an example of a lifeguard who does not race to rescue a swimmer who is struggling in the water. The Justice said the lifeguard might have blown his whistle instead, as the swimmer drowned. According to Justice Gorsuch’s example, the lifeguard’s action, though perhaps illegal on many levels, does not qualify as a “crime of violence.”