Delligatti v. U.S.:  Crimes of omission qualify as “crimes of violence” under ACCA

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           Causing bodily injury by omission qualifies as a “crime of violence” under the Armed Career Criminal Act Sec. 924(c)(3)(A), the U.S. Supreme Court held March 21 in Delligatti v. United States.

           ACCA subjects defendants who use or carry a firearm during a “crime of violence” to certain mandatory minimum sentences.

           Under the statute’s elements clause, an offense qualifies as a “crime of violence” if it has as an element the use, attempted use, or threatened use of physical force against a person or property.

           A “categorical approach” is used to determine if an offense falls within the elements clause.  This approach does not examine the defendant’s conduct, but instead 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 of force, it not a “crime of violence.”

Facts

           Salvatore Delligatti recruited several gang members to carry out a murder-for-hire and provided them with a car and gun.

           Police discovered the plot before it could be carried out, and arrested the gang members and Delligatti.

           Delligatti was charged with several offenses, including one count of using or carrying a firearm during a “crime of violence” under Sec. 924(c).

           The Government charged as a predicate crime of violence attempted murder under the violent-crimes-in-aid-of-racketeering statute, which in turn, required proof of an underlying state or federal offense that constituted attempted murder.

           The Government alleged Delligatti met this requirement by attempting second-degree murder under New York law, which allows conviction when, “with intent to cause the death of another person, he causes the death of such person.”

           Delligatti moved to dismiss the Sec. 924(c) charge on grounds that second-degree murder under New York law does not qualify as a “crime of violence” under the elements clause since it can be committed by omission, defined as the failure to perform a legal duty. 

           For example, a parent who causes his child’s death by intentionally withholding food commits second-degree murder under New York law.

           Delligatti argued that omission-based crimes do not involve the “use of force” necessary to constitute a “crime of violence.”

           The District Court and Second Circuit rejected Delligatti’s claim.

Holding

           The Supreme Court affirmed, in a 7-2 opinion by Justice Thomas.

           “The Second Circuit correctly held that causing bodily harm by omission requires the use of physical force”, the Court held.

           “In the context of a closely related statute, we have held that ‘the knowing or intentional causation of bodily injury necessarily involves the use of physical force’”, the Court said. 

           “There is no exception to this principle when an offender causes bodily injury by omission rather than affirmative act”, the Court said.

In a prior case, the Court had noted that the concept of “force” for common-law battery included causing bodily harm indirectly, such as by administering a poison or infecting a victim with a disease.

           “So, for example, when a person ‘sprinkles poison in a victim’s drink,’ he uses force by ‘employing poison knowingly as a device to cause physical harm,’ even though ‘the act of sprinkling’ does not itself involve force’”, the Court said.

           The Court rejected Delligatti’s argument that, in crimes of omission, the defendant is not the “actual cause” of a victim’s death.

           “We have explained that 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”, the Court said.  “When a young child starves to death after his parents refuse to give him food, that harm would not have occurred but for the parents’ choice.”

           “Context also confirms that crimes of omission fall within the elements clause”, the Court said.  “[W]e prefer interpretations of the elements clause that encompass prototypical ‘crimes of violence’ over those that do not.”

           “Intentional murder is the prototypical ‘crime of violence,’ and it has long been understood to incorporate liability for both act and omission”, the Court said.  “At the time of the elements clause’s enactment, it was widely accepted that one could commit murder by refusing to perform a legal duty, like feeding one’s child.”

           Justices Gorsuch and Jackson dissented.  They believed Sec. 924(c) “does not reach crimes of omission.”