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Salvatore Delligatti v. United States
Paid petition · United States Court of Appeals for the Second Circuit, No. 18-2482, 18-2610 · judgment October 2, 2023
Before the decision, about 4.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Second Circuit decision below, and a circuit split argued in the petition.
Question presented
Under 18 U.S.C. § 924(c)(3)(A), a felony qualifies as a "crime of violence" if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Courts have disagreed about how to apply use-of-force language to crimes that require proof of a victim's bodily injury or death but can be committed by failing to take action. In the decision below, the Second Circuit held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if it can be committed through inaction-such as by failing to provide medicine to someone who is sick or by failing to feed a child. That ruling reflects the law in eight circuits. Two courts of appeals, by contrast, have held that the use of force is not an element of such crimes if the crime may be committed by inaction. One of those courts recently rejected the government's petition for rehearing en banc, which had argued that any crime requiring proof of bodily injury or death necessarily involves the use, attempted use, or threatened use of physical force. The question presented is: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
Counsel of record
For petitioner
Allon Kedem
Arnold & Porter Kaye Scholer LLP
For respondent
Sarah M. Harris
Acting Solicitor General
Case
Conference history
Distributed for 2 conferences
Amicus briefs
2 cert-stage · 3 merits
(3 supporting pet./neither)
Argument & decision
Argued November 12, 2024 — Allon Kedem · Eric J. Feigin. Audio and transcript
Decided March 21, 2025. Opinion by Thomas.
Proceedings
- Aug 06 2025Record returned to the United States District Court for the Southern District of New York.
- Apr 22 2025Judgment Issued.
- Mar 21 2025Adjudged to be AFFIRMED. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Jackson, J., joined.
- Nov 12 2024Argued. For petitioner: Allon Kedem, Washington, D. C. For respondent: Eric J. Feigin, Deputy Solicitor General, Department of Justice, Washington, D. C.
- Oct 30 2024Reply of petitioner Salvatore Delligatti filed. (Distributed)
- Oct 01 2024CIRCULATED
- Sep 30 2024Brief of respondent United States filed.
- Aug 20 2024Record received electronically from the United States Court of Appeals for the Second Circuit and available with the Clerk.
- Aug 16 2024Sealed material received from the United States District Court for the Southern District of New York and available with the Clerk (one envelope). The remainder of the SDNY record is available on PACER.
- Aug 15 2024Brief amici curiae of Federal Public Defender Offices in the Second Circuit filed.
- Aug 15 2024Brief amicus curiae of National Association for Public Defense filed.
- Aug 15 2024Brief amici curiae of National Association of Criminal Defense Lawyers filed.
- Aug 09 2024Record requested from the United States Court of Appeals for the Second Circuit.
- Aug 08 2024Brief of petitioner Salvatore Delligatti filed.
- Jul 26 2024SET FOR ARGUMENT on Tuesday, November 12, 2024.
- Jul 08 2024Motion to extend the time to file the briefs on the merits granted. The time to file petitioner's brief on the merits is extended to and including August 8, 2024. The time to file respondent's brief on the merits is extended to and including September 30, 2024.
- Jun 24 2024Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
- Jun 13 2024Motion to dispense with printing the joint appendix filed by petitioner Salvatore Delligatti.
- Jun 10 2024Motion for an extension of time to file the briefs on the merits filed.
- Jun 03 2024Petition GRANTED.
- May 28 2024DISTRIBUTED for Conference of 5/30/2024.
- May 07 2024DISTRIBUTED for Conference of 5/23/2024.
- May 07 2024Reply of petitioner Salvatore Delligatti filed. (Distributed)
- May 03 2024Waiver of the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed by petitioner.
- May 01 2024Brief for the United States filed.
- Mar 08 2024Motion to extend the time to file a response is granted and the time is further extended to and including May 1, 2024.
- Mar 07 2024Motion to extend the time to file a response from April 1, 2024 to May 1, 2024, submitted to The Clerk.
- Mar 01 2024Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
- Feb 29 2024Brief amicus curiae of National Association for Public Defense filed.
- Feb 22 2024Motion to extend the time to file a response is granted and the time is extended to and including April 1, 2024.
- Feb 21 2024Motion to extend the time to file a response from March 1, 2024 to April 1, 2024, submitted to The Clerk.
- Jan 29 2024Petition for a writ of certiorari filed. (Response due March 1, 2024)