Defendant Anthony Delligatti was arrested for organizing a gang hit on a suspected police informant. Specifically, he was accused of recruiting gang members for the hit and gave them a loaded revolver. He was charged and convicted with violating 18 U.S.C. § 924(c), which prohibits carrying a firearm during or in relation to a “crime of violence,” which, here, was attempted second-degree murder under New York law.
On appeal, Delligatti argued that the New York second-degree murder statute was too broad to qualify categorically as a “crime of violence” under § 924(c) because it criminalizes “omissions,” defined as a failure to perform a legal duty, and not just acts by a defendant. The Second Circuit rejected that argument, holding that New York’s second-degree murder is a crime of violence because it necessarily involves at least the attempted use of force.
Justice Thomas, writing for the Court, agreed. The Court held that murder statutes that criminalize omissions still involve the “use of physical force” within the meaning of § 924(c), reasoning that every murder necessarily requires the use or attempted use of force. According to Justice Thomas, a mother who allows her child to die after drinking bleach, for example, is guilty of murder and using force by omission.
Justice Gorsuch, joined by Justice Jackson, dissented arguing that the Court decision “whistles past” a textual reading of § 924(c). In his view, failing to act does not amount to the “use” of force because, in some instances, a person can commit legal murder without the use, attempted use, or threatened use of physical force.
Certiorari to the Second Circuit
Opinion by Thomas, joined by Roberts, Alito, Sotomayor, Kagan, Kavanaugh, Barrett
Dissenting opinion by Gorsuch, joined by Jackson
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