Does a crime that requires proof of bodily injury or death, but can be committed by failing to take action, involve the use, attempted use, or threatened use of physical force?
Under federal law, anyone carrying a firearm while committing a violent crime that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" faces a mandatory minimum sentence of five years in prison. Rather than assess the physical force used in a specific case, courts apply this statute when defendants are charged with a crime that always involves one of these elements.[1]
Writing for the majority, Associate Justice Clarence Thomas rejected Delligatti's claim, holding that an omission resulting in violent crime with firearms and physical force should be construed as committing such violent crime. Citing the federal government's brief, Thomas noted that when the elements of violent crime clause was added in 1986, at least 33 states defined criminal culpability as including omission of a legal duty.[2]
Dissent
Associate Justice Neil Gorsuch dissented, opining that legislative intent should only be used to resolve statutory ambiguity, whereas the challenged clause lists three specific types of violent crime, none of which encompass omission. Furthermore, legislative history from 1981 shows that the Senate understood that crimes of omission were not covered by this clause. In United States v. Davis (2019), Gorsuch wrote for the majority in rendering the subsequent "residual clause" unenforceable for being unconstitutionally vague, leading him to lament that this decision expands the scope of the elements clause to encompass crimes previously charged under the residual clause.[2]
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