Supreme Court Oral Arguments in Delagatti v. United States Focus on Whether Omissions Can Be 'Use' of Physical Force

The Supreme Court heard argument in Delagatti v. United States over whether the statutory phrase "use of physical force against another" requires an affirmative, active employment of force or can be satisfied by omissions — failures to act — that lead to injury or death. Petitioner's counsel said the text and precedent require an active step to bring force into contact with a victim; government counsel urged that omission-based harms, in some circumstances, can qualify.

The dispute centered on competing readings of the elements clause and the court’s precedent. Petitioner’s counsel argued that examples such as poisoning or pushing someone off a cliff involve an active step that brings a force into contact with a person, whereas a pure omission (for example, failing to render aid to someone with a natural disorder) does not "use" force within the ordinary meaning of the term. Counsel asked the justices to apply the categorical approach, assessing whether violent physical force is an element of the statute across all possible prosecutions under it.

Government counsel, identified in argument as Mr. Fagan, countered that longstanding common-law sources treat some omission cases as functionally equivalent to affirmative acts and that Castleman and Borden illustrate how internal forces (like disease or poisoning) have been treated as physical force in prior opinions. Fagan told the court that withholding an antidote or intentionally starving a child can operate as a means of causing harm and therefore may fall within the elements clause.

During extended questioning, justices tested both sides with hypotheticals. They asked whether a lifeguard who intentionally refuses to rescue a child, a person who locks someone in a room and lets them starve, or a caretaker who withholds medicine would count as "using" physical force. Petitioner's counsel insisted omissions lack the active employment element and that including pure omissions would make the clause sweep too broadly. Government counsel replied that some omissions are best understood as channeling physical forces (gravity, water, disease) that cause harm and pointed to state statutes that impose duties to act.

The justices also discussed the consequences of each interpretation. Several expressed concern about statutory divisibility — whether acts and omissions should be treated as separate, divisible means of committing an offense — and whether resolving that question would affect the court’s analysis. Counsel for the petitioner urged the court to avoid a new divisibility inquiry and to preserve the ordinary, active-employment meaning of "use." Government counsel noted that many states incorporate omission liability and warned that a narrow reading could exclude plainly violent murders and other serious offenses from federal enhancements.

Petitioner’s rebuttal, delivered by Mr. Kienle, reiterated that the elements clause requires an affirmative application of violent physical force and that the court should adhere to the established categorical approach rather than extending "use" to all omission-based harms. After rebuttal, the court announced the case was submitted.

The argument focused on statutory interpretation and precedent rather than the specific facts of Delagatti’s underlying conviction, although the justices repeatedly returned to hypotheticals to probe the outer limits of each party’s reading. The court did not issue a decision from the bench; the matter was submitted for later opinion.