Supreme Court hears New York crime family associate’s gun charge appeal

Dropping poison in a drink. Serving food gone dangerously bad. Or, hiring hitmen to take out a foe.

Are those violent crimes?

The Supreme Court appeared unconvinced Tuesday by a New York crime family associate’s argument that his conviction in a foiled murder-for-hire plot does not qualify as a “crime of violence” because he used no physical force. However, the justices seemed open to ruling that some crimes committed through inaction cannot be deemed violent.

Salvatore Delligatti, a Genovese crime family associate also known as “Fat Sal,” was found guilty of charges including racketeering and attempted murder after plotting to kill a local “bully.” He hired members of the Crips street gang and provided them with a .38 revolver and getaway car, but police intervened before the plot was carried out.

Delligatti was also convicted of possessing a firearm in furtherance of a “crime of violence,” which carries a mandatory minimum sentence of five consecutive years in prison. He was sentenced to 25-year prison term in total.

Delligatti lawyer Allon Kedem argued Tuesday that a crime requiring death or bodily injury like murder, but committed through inaction, cannot be deemed a “crime of violence.” He asked the justices to throw out that conviction.

“Using physical force against another requires taking some step to bring force into contact with the victim,” Kedem said. “That can happen directly, as with a kick or punch, or indirectly, such as giving a gentle push to someone teetering on the edge of a cliff. But it does not involve an offense that can be committed by pure omission, such as failing to render aid to someone suffering from a natural disorder.”

In court filings, Delligatti’s counsel contended that — while perhaps “morally reprehensible” — failing to provide a person with necessary medical care or nutrition, causing serious injury or death, does not involve the use of any force. The same is true in Delligatti’s case, where no one pulled the trigger, he said.

The justices seemed skeptical, posing several hypothetical questions about whether inaction can still be violent.

Justice Elena Kagan asked whether offering an enemy food so spoiled it was “completely toxic” would qualify as a violent crime, while Justice Sonia Sotomayor raised scenarios about choosing not to offer the Heimlich maneuver to a random person choking versus one's own child, noting the obligation to act.

Justice Samuel Alito called the legal arguments “fascinating,” but noted that Delligatti’s crime is perhaps more cut-and-dry than others.

“Would you argue that your client is not the kind of armed career criminal that Congress was trying to get at when they enacted this statute?” he asked.

"We would not argue that,” Kedem replied.

Justice Neil Gorsuch, pointing specifically to states with Good Samaritan statutes, questioned if letting a “little old lady” step into a manhole without intervening would qualify.

“Physical force (is), I guess, the gravity — what more powerful force in the universe is there than that?” Gorsuch said. “Would that, in your view, fall within the government's understanding of what will qualify as the application of violent force?”

“It would have to,” Kedem replied. “The government's view, essentially, is, anytime you have a bad result, you know that there must have been violent physical force. Which means that, not only would the death or other injury in your example be violent physical force, it would also be involved in literally every death since the beginning of time, because in every death, something bad happens.”

Eric Feigin, deputy solicitor general, strongly pushed back.

“It's hard to believe that we're actually here debating whether murder is a crime of violence,” Feigin argued before the justices Tuesday.

Despite the justices’ skepticism of Delligatti’s position, sharp hypothetical questions were asked of the government, as well.

Justice Ketanji Brown Jackson posed a scenario where a lifeguard sees a child she “hates” get into the pool; when the child starts drowning, she doesn’t jump into the water to save him.

"Is it your position that she uses physical force against this kid if she doesn't jump into the water when she sees him drowning?” Jackson asked.

Federal appeals courts have split over how to apply the gun charge to other cases, with two of 10 appeals courts that have weighed the matter determining that use of force is not an element of such crimes if the crime can be committed by inaction, as Delligatti contends.

In an unusual move, the government agreed that the justices should hear Delligatti’s appeal to give lower courts better clarity, despite opposing it.

A decision is expected by next summer.