Delligatti v. United States (23-825)

argument 23-825

Delligatti v. United States

Supreme Court of the United States 1h 3m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the Court’s definition of “use of violent physical force” in this case?

John G. Roberts 0:00

Next, in Case 23-825,

Christopher Keenum 0:03

Delegati v. United States. Mr. Keatom? Mr. Chief Justice, and may it please the Court, using physical force against another requires taking some step to bring force into contact with the victim. 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. The government's attempt to reverse engineer the use of force from the presence of injury is contrary to logic and plain meaning. It also runs counter to this Court's instructions that use means active employment, that physical force is violent force,

Christopher Keenum 0:54

and that against another means making contact with another. The government's appeal to practical consequences, in addition to being irrelevant to interpreting the statute's text, is similarly unpersuasive. At the time the elements clause was adopted, all or nearly all of the statutes identified by the government would have satisfied the residual clause. And, per the government's hedging here, many will satisfy the elements clause too, regardless of whether crimes of omission are excluded. A failure to counteract harm may be morally and legally culpable, and it may merit severe punishment, but it does not categorically involve the use of violent physical force against another. I would welcome the Court's questions.

Clarence Thomas 1:39

So in your thinking, if you poison someone and thereby cause the death of that person, that is, in your argument, under your argument, treated differently from withholding critical, say, heart medicine when someone is in the process of having a heart attack.

Christopher Keenum 2:02

That's correct, Your Honor. So this Court has described poison as having forceful physical properties that you would have put into contact with the victim by putting it in their drink. That's a very different situation than someone who, potentially through natural causes, slips into distress, and you don't take any action to put them into contact with any force, and there may not be any force involved. if, for instance, it's a congenital disorder. So there's no force at all, and you wouldn't have used that force actively.

Elena Kagan 2:30

I'm sorry, I don't know. You almost seem to be talking proximate cause. There's no force in the poison itself and what you did. The force is in the nature of the substance that goes through the person's body. Similarly, there's no violent force in a gentle push of a 90-year-old down the stairs. You could probably do it with a finger. so there's no violent force there. What you seem to be saying is, if I have a duty to act and I choose not to, I'm not responsible for the force that I let work on this human being. That's your position, correct?

Christopher Keenum 3:09

No, Your Honor. So in both the poisoning example and giving a gentle push to someone who falls down the stairs or off of a cliff, you are not directly applying violent physical force. It's a gentle touch or You're just letting the molecules of the poison fall from your hand. But there is still an application of violent physical force when they hit the ground at high speed. Well, I

Elena Kagan 3:29

would tell someone who's freezing in the snow that there's an application of winter conditions to their body to kill them.

Christopher Keenum 3:37

Sure. And in that instance, again, you might describe the elements as involving violent physical force, which perhaps you could describe as using indirectly if, for instance, you throw them out into the snow. But that's a very different situation than a pure omission where someone, let's say, has an allergic reaction. It's not a

Elena Kagan 3:55

pure omission. It's an obligation to act.

Christopher Keenum 3:58

Sure.

Elena Kagan 3:59

I mean, I could be in a restaurant watching someone die, but I have no obligation, even if I know the Heimlich maneuver to do it. However, if it's a child and my child, I have an obligation to try to save them.

Christopher Keenum 4:13

That's correct. And it is a serious offense. So I'm

Elena Kagan 4:15

letting nature use its force to kill that child.

Christopher Keenum 4:19

So— there's no dispute that it is criminally culpable behavior and can be punished severely.