Supreme Court, by 7-2 vote, rules that an omission can involve the “use of physical force” in Delligatti

This morning the US Supreme Court handed down an opinion in favor of the government on a statutory issue in Delligatti v. US, No. 23–825 (S. Ct. March 21, 2025) (available here).  The opinion for the Court, authored by Justice Thomas, begins and ends this way:

Title 18 U.S.C. § 924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. 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.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to § 924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative….

The knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the use of physical force against another person. The judgment of the Court of Appeals for the Second Circuit is affirmed.

Justice Gorsuch authored a lengthy dissent, which was joined by Justice Jackson, and which starts this way:

Imagine a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action, the lifeguard chooses to settle back in his chair, twirl his whistle, and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man. In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under 18 U. S. C. §924(c)(3)(A) as a “crime of violence” involving the “use . . . of physical force against the person . . . of another”? The Court thinks so. I do not. Section 924(c)(3)(A) may reach many crimes, but it does not reach crimes of omission.