The Supreme Court on Friday ruled that crimes committed through inaction can still be violent, rejecting a New York crime family associate’s claim that his conviction in a foiled murder-for-hire plot wasn’t a “crime of violence” because he used no physical force. 

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 a street gang and gave them a gun and getaway car, but police intervened before the plot ensued.  

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 contended that a crime requiring death or bodily injury like murder, but committed through inaction, cannot be deemed a “crime of violence.” The justices in a 7-2 decision rebuffed that claim.

“Intentional murder is the prototypical crime of violence,’ and it has long been understood to incorporate liability for both act and omission,” Justice Clarence Thomas wrote in the majority opinion.  

At oral arguments in November, the justices hypothesized any number of potentially violent crimes committed through inaction, from dropping poison in a drink or serving food gone dangerously bad to failing to feed a child.  

Thomas called back to those scenarios in his opinion. He wrote that a mother who purposely kills her child by deciding not to step in as they drink bleach is still “making ‘use’” of the bleach’s poisonous properties. Or if a person “sprinkles poison” in a victim’s drink, force is still used by “employing poison knowingly as a device to cause physical harm,” despite the act of sprinkling not involving force.  

Justice Gorsuch wrote a dissenting opinion, which Justice Ketanji Brown Jackson joined, which argues that the majority “reworks” the definition of a “crime of violence” at the government’s request but that it’s new definition does not align with the statute.  

The minority justices offered their own hypothetical: A lifeguard spots a swimmer struggling against the waves, but instead of leaping into action, he chooses to “settle back in his chair, twirl his whistle, and watch the swimmer slip away.” 

“The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard’s enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man,” Gorsuch wrote. “In many States, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard’s offense also qualify under (the law) as a ‘crime of violence’ involving the ‘use…of physical force against the person…of another’?” 

“The Court thinks so,” he continued. “I do not.” 

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

Despite opposing Delligatti’s appeal, the government agreed that the justices should consider the matter to give lower courts better clarity.  

Updated at 10:46 a.m. EDT