In a case sure to confound philosophers as well as criminal law practitioners, the Supreme Court granted certiorari today in Delligatti v. U.S., 23-825. The question presented is: does a crime that requires proof of bodily injury or death, but that can be committed by failing to take action, have as an element the use, attempted use, or threatened use of physical force under 18 U.S.C. § 924(c)?
Mr. Delligatti was charged with attempted murder in aid of racketeering under 18 U.S.C. § 1959(a)(5), which was based on attempted second-degree murder under N.Y. Penal Law § 125.25(1). He argued that the state charge is not a crime of violence because it can be committed by affirmative acts or omissions. Eight circuits, including the 11th, disagree with him. See, e.g., United States v. Sanchez, 940 F.3d 526, 535-36 (11th Cir. 2019). The Third and the Fifth Circuits agree with Mr. Delligatti.
So, does failure to act equal violence? The answer may seem obvious, but in a land where “and” means “or” (Pulsifer v. US, 144 S. Ct. 718 (2024)), who can say? This case will be argued and decided next term. In the meantime, preserve those objections!
And for more info or to read the cert petition and response, the brilliant folks at Scotusblog have that info here. https://www.scotusblog.com/case-files/cases/delligatti-v-united-states/