Using Force by Omission: Supreme Court Holds Intentional Harm by Inaction Qualifies as “Use of Physical Force” Under §924(c)’s Elements Clause

Introduction

In Delligatti v. United States (U.S. Supreme Court, Mar. 21, 2025), the Court resolved a recurring and consequential question under 18 U.S.C. §924(c): whether an offense that can be committed by omission (failing to perform a legal duty) can qualify as a “crime of violence” under the statute’s elements clause, which applies to offenses that “have as an element the use, attempted use, or threatened use of physical force against the person or property of another” (§924(c)(3)(A)).

The case arose from a murder-for-hire plot connected to the Genovese crime family. Petitioner Salvatore Delligatti recruited accomplices and supplied a loaded revolver to kill a suspected informant. The §924(c) count was predicated on attempted murder in aid of racketeering (VICAR), 18 U.S.C. §1959(a)(5), which in turn incorporated New York second-degree murder as the underlying offense. Delligatti argued that because New York second-degree murder can be committed by omission (e.g., a caretaker intentionally withholding food or medical care), it does not categorically require the “use of physical force,” and thus cannot support a §924(c) conviction.

The Supreme Court, in an opinion by Justice Thomas joined by Chief Justice Roberts and Justices Alito, Sotomayor, Kagan, Kavanaugh, and Barrett, affirmed the Second Circuit. It held that the knowing or intentional causation of injury or death—whether by act or by deliberate omission—necessarily involves the “use” of “physical force” within the meaning of §924(c)(3)(A). Justice Gorsuch, joined by Justice Jackson, dissented.

Summary of the Opinion

Holding: The knowing or intentional causation of bodily injury or death, including by omission, necessarily entails the “use of physical force” against another person under §924(c)’s elements clause. Therefore, New York second-degree murder—which requires intent to cause death and causation of death—is categorically a “crime of violence,” and attempted VICAR murder predicated on it qualifies under §924(c).
Analytical core: The Court extends the logic of United States v. Castleman (2014)—that intentionally causing bodily injury necessarily uses physical force—to §924(c), and confirms via Stokeling v. United States (2019) that even “violent force” (as defined in Johnson v. United States (2010)) can be applied indirectly. The majority also concludes that deliberately using natural or chemical forces through inaction is still a “use” of force and that, when one intentionally causes harm by omission, the force is used “against” the victim.
Causation: Invoking Burrage v. United States (2014), the Court rejects the idea that omissions are “legal fictions” rather than “actual causation”; a child’s death from starvation is “but for” the parents’ refusal to feed the child.
Context: Because “intentional murder is the prototypical crime of violence” and has long encompassed liability by act or omission in Anglo-American law, the elements clause must be read to include cases of deliberate inaction to preserve a sensible relationship to the defined term.
Limits and assumptions: The Court assumes (without deciding) that §924(c)’s “physical force” refers to Johnson’s “violent force,” and it decides the case on the parties’ assumption that attempt qualifies where the completed offense would qualify. It also leaves open whether a VICAR offense can be a crime of violence even if the predicate offense is not (noting Fourth Circuit authority to the contrary).
Dissent: Justice Gorsuch (joined by Justice Jackson) insists that “use” implies active, volitional employment of force, not mere inaction, and that “physical force” means force exerted by a physical act. He criticizes the majority for sidestepping text and context, relying too heavily on Castleman and Stokeling, and blurring the elements and residual clauses. He also invokes the rule of lenity.

Analysis

Precedents Cited and Their Influence

The opinion builds a doctrinal bridge from earlier “use of force” cases—particularly Castleman and Stokeling—to §924(c), with additional scaffolding from causation, mens rea, and definitional cases.

United States v. Castleman (2014)

Castleman held that, for §922(g)(9) (misdemeanor crime of domestic violence), the “knowing or intentional causation of bodily injury necessarily involves the use of physical force.” Two critical steps undergirded that conclusion:

It is impossible to cause bodily injury without applying force in the battery sense, and that force may be indirect (e.g., poison, disease, or even intangible agents).
The knowing or intentional application of force is a “use” of force—one uses force when one makes it the instrument of harm, directly or indirectly.

In Delligatti, the Court extends this logic from §922(g)(9) to §924(c), noting that although §924(c) is often said to require “violent force” (per Johnson, 2010), both the battery-level and violent-force standards accept indirect applications of force. Thus, Castleman’s core principle—that intentional causation of injury is a use of physical force—translates.

Johnson v. United States (2010)

Johnson defined “physical force” in ACCA’s elements clause to mean “violent force—that is, force capable of causing physical pain or injury.” The Delligatti majority assumes (without deciding) the same meaning applies to §924(c), but finds the distinction immaterial because indirect applications of force (poison, etc.) can be “violent” (capable of causing injury) when they actually cause injury or death.

Stokeling v. United States (2019)

Stokeling clarified that “violent force” includes the force necessary to overcome a victim’s resistance in robbery, which may be modest and still suffice; any force that actually causes injury qualifies as “violent.” Delligatti draws on Stokeling to reject arguments about “eggshell victims” and to reinforce that indirect applications of force can be “violent” for statutory purposes. The majority also invokes the long-standing understanding that both battery and robbery may be accomplished by indirect force.

Burrage v. United States (2014)

Burrage provides the “but for” baseline for actual causation. Delligatti applies Burrage to omission: if a caretaker’s failure to act is a but-for cause of death (e.g., starvation), it is no less an actual cause than poisoning. This undermines the claim that omission-based homicide relies on a mere legal fiction.

Borden v. United States (2021)

Borden fractured on the meaning of “against” in “use of force against the person of another.” The Delligatti majority reads “against” to at least identify the object of force and possibly a mens rea threshold (knowing or intentional), but deems the issue non-dispositive here. When harm is deliberately caused by omission, the victim is the conscious object of the force used (e.g., the bleach’s toxic properties).

Bailey v. United States (1995), Voisine v. United States (2016), and Leocal v. Ashcroft (2004)

These cases explore “use” as “active employment,” “volitional conduct,” or “to employ; to avail oneself of.” The majority reads these precedents as consistent with using natural or chemical forces to accomplish harm, even via inaction where the actor purposefully employs those forces to achieve the forbidden result. The dissent reads them to demand an affirmative physical act.

United States v. Davis (2019) and United States v. Taylor (2022)

Davis invalidated §924(c)’s residual clause (§924(c)(3)(B)) as unconstitutionally vague, intensifying the practical importance of the elements clause. Taylor reaffirmed the categorical approach—courts look to elements, not case-specific facts. Delligatti proceeds categorically, emphasizing that New York second-degree murder’s elements embody intentional causation of death, whether by act or omission.

Historical and Treatise Sources

The Court canvasses common-law and state authorities reflecting long-standing acceptance of omission-based liability for murder and battery, noting that by 1986 at least 33 States expressly treated omissions as criminal “acts,” and leading treatises (LaFave & Scott; Wharton) equated act and omission where a legal duty is owed. This supports aligning §924(c)’s definition of “crime of violence” with the conventional reach of serious violent offenses.

Legal Reasoning

Castleman’s logic governs: intentional causation necessarily uses force. The Court reiterates that one cannot intentionally cause bodily injury without employing physical force, including by indirect means. Because §924(c)’s “physical force” can be violent and still applied indirectly (as confirmed by Stokeling), the Castleman principle squarely applies: intentional causation of harm is a “use” of physical force.
Omissions can be “uses” of force. The Court rejects an act/omission dichotomy. A person can “use” something by inaction—e.g., using rain to wash a car by leaving it outside; using darkness to hide by laying still. In the homicide context, a parent who lets a child drink bleach to cause death “uses” the bleach’s toxic force through deliberate inaction. The focus is on purposeful employment of a harmful physical force to cause injury.
“Against the person of another” is satisfied by deliberate omission. When one intentionally causes harm by omission, the victim is the conscious object of the force employed. It would be incoherent to concede that force was used to cause the victim’s death but deny it was used against anyone.
Actual causation, not legal fiction. Under Burrage, an omission satisfying a legal duty is an “actual cause” of the result when the harm would not have occurred but for the omission. The parent who refuses to feed a child is as much a but-for cause of death as a poisoner.
“Crime of violence” must reasonably match its ordinary meaning. Intentional murder is the archetypal violent crime, and its inclusion historically encompassed omission-based liability. Reading §924(c)’s elements clause to exclude intentional murders by omission would sever the definition from the ordinary meaning of the term it defines. The residual clause (now void) would have been an awkward fit for intentional homicide, which involves far more than a “risk” of force.

The Dissent’s Counterarguments

Justice Gorsuch advances a primarily textual critique:

“Use” implies action. Echoing Bailey, “use” entails active employment, not inaction, inertia, or non-activity. An omission—even a culpable one—does not satisfy the statute’s active-verb demand.
“Physical force” means a physical act, not leveraging pre-existing forces. Johnson’s ordinary meaning occupies center stage; allowing nature to run its course is not an “application” of force. The dissent emphasizes “violent, active crimes” as the statutory focus.
Context and redundancy. If omission offenses belong anywhere in §924(c), the residual clause (now void) was their “natural home.” Using the elements clause to capture omissions blurs independent roles Congress delineated.
Congress knows how to say “omission.” Numerous statutes expressly reach “acts or omissions.” Congress omitted the word “omission” in §924(c)(3)(A), suggesting a narrower scope.
Precedent selection and lenity. The dissent criticizes the majority’s heavy dependence on Castleman and Stokeling to the exclusion of Bailey, Leocal, Voisine, Johnson, and Taylor; if doubt remains, the rule of lenity should resolve it.
Legislative history and usage evidence. A 1981 Senate Report (dam operator hypothetical) and corpus linguistics indicate ordinary usage of “use of physical force” contemplates assertive physical contact.

Impact and Implications

The decision substantially clarifies the scope of §924(c)’s elements clause with respect to omission-capable offenses and will influence charging, plea bargaining, and sentencing across a range of violent crime prosecutions.

Expanded predicate universe (with mens rea limits). Offenses that require knowing or intentional causation of bodily injury or death will categorically qualify as “crimes of violence,” even if state law recognizes commission by omission. This includes intentional homicide and intentional serious-assault-by-omission offenses. However, Borden’s mens rea constraint remains: offenses satisfied by mere recklessness or negligence are not encompassed by the “use of force” clause. Prosecutors must ensure predicate statutes require at least knowing or intentional causation.
Attempt predicates. The Court proceeds on the assumption (not disputed by the parties) that attempted second-degree murder qualifies when the completed offense qualifies—an important practical point for §924(c) counts predicated on attempt statutes, including VICAR attempt.
VICAR predicates. The Court leaves open whether a VICAR offense can be a “crime of violence” even when the referenced predicate is not (noting a Fourth Circuit decision suggesting it can). Expect continued litigation on whether VICAR’s elements independently satisfy §924(c), especially for inchoate or conspiracy predicates.
Indirect force canonized for “violent force.” The opinion cements that “violent force” can be applied indirectly, including through natural or chemical forces, so long as the defendant intentionally employs those forces to cause harm. This will affect litigation strategy in poisoning, drugging, and neglect-homicide cases tied to §924(c).
Beyond homicide—property and other harms. The definition applies equally to force “against the person or property of another.” Intentional property harms accomplished by omission (e.g., deliberately failing to avert a known destructive physical process) may also qualify, though such prosecutions will be factually rarer.
Immigration and other “crime of violence” regimes. Because §924(c)(3)(A) mirrors the elements clause in 18 U.S.C. §16(a), Delligatti will likely influence (though not automatically control) “crime of violence” analyses outside §924(c), including in immigration removal and other federal contexts. Leocal’s and Borden’s mens rea constraints will still cabin reach.
Charging and sentencing leverage. Prosecutors may more confidently invoke §924(c) with intentional homicide or intentional serious-injury predicates that can be committed by omission. Defense counsel should scrutinize mens rea, divisibility, and whether the statute can be violated recklessly or negligently (which, under the categorical approach, would defeat §924(c) eligibility).

Complex Concepts Simplified

Elements clause vs. residual clause: The elements clause (§924(c)(3)(A)) asks whether the statute’s elements necessarily require the use/attempted/threatened use of force. The residual clause (§924(c)(3)(B))—now void—asked whether the offense by its nature involves a substantial risk that force may be used.
Categorical approach: Courts do not examine what the defendant actually did; they ask whether the statute’s minimum conduct always involves the use (or attempted/threatened use) of force. If the offense can be committed without such force, it is not a categorical match.
Omission liability: Criminal law treats failures to act as culpable when a legal duty to act exists (e.g., parent-child, caregiver-patient). If a defendant has such a duty and intentionally allows harm to occur, the law treats the omission as causative of the result.
“Use” of force by inaction: One can “use” physical forces by deliberately letting them operate (e.g., allowing poison to be consumed) to achieve a harmful end. The key is purposeful employment of a physical force to produce injury.
“Violent force” and indirect causation: “Violent force” does not require a punch or shove; it includes force capable of causing injury even when applied indirectly (poison, sedatives, environmental exposure) if used intentionally to harm.
“Against the person of another”: This phrase identifies the target of the force and, under some readings, implies the actor must at least knowingly or intentionally direct the force at that person. An intentional omission that causes harm still directs force against the victim.

Notable Nuances and Open Questions

Mens rea boundaries: The holding is expressly limited to “knowing or intentional” causation. Whether and how the reasoning could extend to crimes defined in part by “extreme indifference” or “depraved heart” mental states (often treated as reckless) remains governed by Borden’s constraint.
Application to property offenses by omission: Delligatti’s logic suggests intentional property destruction via omission could qualify, but the availability of such prosecutions will depend on the existence of a legal duty and the statute’s elements.
VICAR structure: The Court leaves unresolved whether VICAR offenses can stand as crimes of violence based on VICAR’s own elements even if the referenced predicate would not qualify. Expect continued circuit activity.
Instructional/pleading considerations: While the categorical approach ignores case-specific facts, prosecutors charging complex omission-capable predicates should be mindful of statutory divisibility and ensure that indictments and jury instructions track the intentional/knowing elements relevant to §924(c).

Conclusion

Delligatti materially advances the law of §924(c) by definitively holding that intentional or knowing causation of bodily injury or death—whether by act or omission—categorically involves the “use” of “physical force” against another person. Balancing Castleman’s core insight with Stokeling’s understanding of violent force, the Court rejects a formalistic act/omission divide in favor of a functional inquiry into whether the defendant purposefully employs physical forces to cause harm. In doing so, the Court aligns the elements clause with the ordinary meaning of “crime of violence,” historically encompassing homicide by omission, and resolves a major categorical-approach question in the post-Davis landscape.

The dissent’s textual critique—rooted in active-verb usage, Johnson’s “violent force” rubric, and Bailey’s insistence on “active employment”—underscores that the decision reflects a contest between two competing textualist frames: one focusing on the instrumentality of force (even via inaction), the other on the physicality of the defendant’s acts. For now, the governing rule is clear: where the statute of conviction requires intentional or knowing causation of bodily injury or death, the offense falls within §924(c)(3)(A) even if state law recognizes commission by omission. This clarity will have significant effects on charging and sentencing in violent crime cases, with mens rea remaining the principal limiting principle.

Key Takeaways

Intentional or knowing harm by omission counts as a “use of physical force” under §924(c)’s elements clause.
Violent force can be applied indirectly; purposefully employing natural or chemical forces suffices.
“Against the person of another” is satisfied when the victim is the conscious object of the force, even with omissions.
Actual causation (but-for) is met by omissions where a legal duty exists; it is not a mere legal fiction.
The ruling is limited by mens rea: reckless or negligent omissions remain outside §924(c)(3)(A) under Borden.
VICAR attempted murder predicated on New York second-degree murder qualifies; the Court leaves broader VICAR issues open.