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DOING NOTHING IS A VIOLENT OPTION

A conviction for using a gun in a crime of violence under 18 USC § 924(c) requires that the underlying offense being committed while using the gun be a felony involving the “use of physical force” against another person. Shooting someone obviously qualifies, but what if the underlying crime can be committed by doing nothing? Doing nothing hardly involves the “use of physical force” against another person.

Because the underlying offense must be categorically a crime of violence, you might think that if it can be committed without the “use of physical force,” it’s not violent. The Supreme Court disagreed in a 7-2 decision last Friday.

Salvatore Delligatti was convicted of a § 924(c) offense for recruiting some people to kill a suspected snitch and giving them a gun to do the job. The underlying offense was second-degree murder under state law, which could be accomplished simply by failing to act, such as letting a nursing home patient starve to death by not feeding him. Sal argued that a failure to act resulting in death meant that the second-degree statute was categorically not a crime of violence, and his § 924(c) conviction had to be thrown out.

SCOTUS held that it was a crime of violence. The high court ruled that while Sal argued that an offender can commit 2nd-degree murder without being the actual cause of the victim’s death because the offender can do so through “omission of a legal duty. But the test for ‘actual causality’ is whether the victim’s death ‘would not have occurred in the absence of—that is, but for—the defendant’s conduct…’ When a child starves to death after the parents refuse to provide food, the parents’ conduct is no less a cause of death than if the parents had poisoned the child.”

What’s more, the Court ruled, an offender who causes harm by omission still makes “use” of physical force “against the person… of another.” The Justices said, “[I]t is natural to say that a person makes ‘use’ of something by deliberate inaction. A mother who purposely kills her child by declining to intervene when the child drinks bleach makes ‘use’ of the bleach’s poisonous properties.”

Justice Neil Gorsuch wrote a spirited dissent, in which Justice Ketanji Jackson joined, but the decision suggests that SCOTUS is finding some practical limits to its “crime of violence” jurisprudence. After all, if doing nothing is physical force, there seem to be no practical limits on what might be a crime of violence.

Delligatti v. United States, Case No. 23-825, 2025 U.S. LEXIS 1072 (March 21, 2025)

– Thomas L. Root