Amicus Curiae Brief — Salvatore Delligatti, Petitioner v. United States

No. 23-825

IN THE

SALVATORE DELLIGATTI,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

Emily Hughes

NATIONAL ASSOCIATION

FOR PUBLIC DEFENSE

130 Byington Road

Iowa City, IA 52242

Daniel Woofter

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

dw@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

ARGUMENT ................................................................ 3

I.

New York Second Degree Murder Is Not A

Predicate Offense Under Section 924 Of The

ACCA. .................................................................... 3

A. Second degree murder can be committed

in New York with no action at all. ................. 3

B. Crimes that require zero physical action

by the defendant are not predicates

under the use-of-force clauses of the

ACCA. ............................................................. 7

II. Congress Has Had Over Thirty Years To

Amend The Force Clauses Of Section 924 In

The Face Of Seemingly Unsatisfying Results

And Chosen Not To Do So. .................................. 13

CONCLUSION .......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Bailey v. United States,

516 U.S. 137 (1995) .................................................. 8

Descamps v. United States,

570 U.S. 254 (2013) .................................................. 4

In re Dashawn W.,

21 N.Y.3d 36 (2013) .................................................. 5

Johnson v. United States,

559 U.S. 133 (2010) ............................ 6, 9, 10, 11, 12

Leocal v. Ashcroft,

543 U.S. 1 (2004) ............................................ 8, 9, 12

Mathis v. United States,

579 U.S. 500 (2016) .......................................... 13, 14

Matthews v. Barr,

927 F.3d 606 (2d Cir. 2019) ..................................... 3

Moncrieffe v. Holder,

569 U.S. 184 (2013) .............................................. 6, 7

Neal v. United States,

516 U.S. 284 (1996) ................................................ 14

People v. Steinberg,

595 N.E.2d 845 (N.Y. 1992) ............................. 5, 6, 7

People v. Wong,

619 N.E.2d 377 (N.Y. 1993) ................................. 6, 7

Shepard v. United States,

544 U.S. 13 (2005) ............................................ 13, 14

Taylor v. United States,

495 U.S. 575 (1990) ............................................ 2, 14

United States v. Aparicio-Soria,

740 F.3d 152 (4th Cir. 2014) .................................... 7

iii

United States v. Castleman,

572 U.S. 157 (2014) .......................... 9, 10, 11, 12, 13

United States v. Covington,

880 F.3d 129 (4th Cir. 2018) .................................. 13

United States v. Drummond,

925 F.3d 681 (4th Cir. 2019) .................................... 4

United States v. Harris,

289 A.3d 1060 (Pa. 2023) ....................................... 15

United States v. Harris,

68 F.4th 140 (3d Cir. 2023) .................................... 10

United States v. Harris,

88 F.4th 458 (3d Cir. 2023) .............. 2, 10, 14, 15, 16

United States v. Harris,

844 F.3d 1260 (10th Cir. 2017) ................................ 6

United States v. Kroll,

918 F.3d 47 (2d Cir. 2019) ..................................... 16

United States v. Mayo,

901 F.3d 218 (3d Cir. 2018) ............................. 10, 12

United States v. Middleton,

883 F.3d 485 (4th Cir. 2018) .................................... 9

United States v. Torres-Miguel,

701 F.3d 165 (4th Cir. 2012) .................................. 13

Villanueva v. United States,

893 F.3d 123 (2d Cir. 2018) ................................... 10

Statutes

18 U.S.C. § 16(a) .......................................................... 8

18 U.S.C. § 3559(e) .................................................... 16

18 U.S.C. § 921(a)(33)(A)(ii) ...................................... 11

18 U.S.C. § 922(g)(9) .................................................. 11

18 U.S.C. § 924... 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16

iv

18 U.S.C. § 924(c)(3)(A) ....................................... 2, 3, 8

18 U.S.C. § 924(e) ............................................ 8, 10, 11

18 U.S.C. § 924(e)(1) .................................................. 13

18 U.S.C. § 924(e)(2)(B)(i) ........................................ 3, 8

N.Y. Penal Law § 125.20 ............................................. 4

N.Y. Penal Law § 125.20(1) ......................................... 5

N.Y. Penal Law § 125.25 ......................................... 4, 8

N.Y. Penal Law § 125.25(1) ..................................... 4, 5

N.Y. Penal Law § 125.25(2) ..................................... 4, 5

N.Y. Penal Law § 125.25(3) ..................................... 4, 5

N.Y. Penal Law § 125.25(4) ..................................... 4, 5

N.Y. Penal Law § 125.25(5) ..................................... 4, 5

N.Y. Penal Law § 15.10 ............................................... 4

Rules

Supreme Court Rule 37 ............................................... 1

1

INTEREST OF AMICUS CURIAE1

The National Association for Public Defense

(NAPD) is an association of more than 28,000

professionals who deliver the right to counsel

throughout all U.S. states and territories. NAPD

members include attorneys, investigators, social

workers, administrators, and other support staff who

are responsible for executing the constitutional right

to effective assistance of counsel. NAPD’s members

are advocates in jails, in courtrooms, and in

communities, and are experts in not only theoretical

best practices, but also in the practical, day-to-day

delivery of legal services. Their collective expertise

represents federal, state, county, and local systems

through full-time, contract, and assigned counsel

delivery mechanisms, dedicated juvenile, capital and

appellate offices, and a diversity of traditional and

holistic practice models. In addition, NAPD hosts

annual conferences and webinars where discovery,

investigation, cross-examination, and prosecutorial

duties are addressed. NAPD also provides training to

its members concerning zealous pretrial and trial

advocacy and strives to obtain optimal results for

clients both at the trial level and on appeal.

1

Pursuant to Supreme Court Rule 37, counsel for amicus

represents that he authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amicus or its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Counsel of record for all parties received timely notice of amicus’s

intent to file this brief.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

NAPD’s members represent a broad cross-section

of the criminal defense bar. All have a strong interest

in this case because the Second Circuit incorrectly

held that a crime that can be committed with no action

at all “has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another.” See Pet. App. 8a, 11a-12a

(quoting 18 U.S.C. § 924(c)(3)(A)). The Second

Circuit’s holding does violence to the text of

Section 924 of the Armed Career Criminal Act (ACCA)

and misapplies this Court’s precedents—prejudicing

NAPD’s members and those they represent.

As the Third Circuit recently explained, a prior

criminal conviction cannot be a predicate offense

under Section 924’s force clauses when the statute of

conviction can be committed with no physical act at

all. Thus, because first-degree aggravated assault in

Pennsylvania, for example, can be accomplished by

“‘omission,’” it “does not include the use of force as an

element. Period. That should be the end of it.” United

States v. Harris, 88 F.4th 458, 464 (3d Cir. 2023)

(Jordan, J., concurring in denial of rehearing en banc,

joined by Chagares, C.J., and Hardiman, Krause,

Bibas, Porter, and Matey, JJ.) (rejecting government’s

contrary argument). This result may sometimes “be a

source of great frustration for the government.” See id.

at 459. But it is the “outcome” that “is compelled by

precedent” from this Court going back more than

thirty years. Id. at 459, 466-70; see Taylor v. United

States, 495 U.S. 575 (1990). At this point, the

government must turn to Congress if it wants a

different statutory regime.

3

ARGUMENT

I.

New York Second Degree Murder Is Not A

Predicate Offense Under Section 924 Of The

ACCA.

A. Second degree murder can be committed

in New York with no action at all.

1. New York’s highest court has held that second

degree murder can be committed under state statute

regardless of whether the defendant caused the death

by his own physical action. In other words, second

degree murder can be committed in New York with a

complete lack of action by a defendant. That cannot be

a predicate offense under Section 924 of the ACCA

because it necessarily does not require “as an element

the use, attempted use, or threatened use of physical

force against the person ... of another.” 18 U.S.C.

§ 924(c)(3)(A) (use-of-force element in “‘crime of

violence’” definition); see 18 U.S.C. § 924(e)(2)(B)(i)

(same in “‘violent felony’” definition).2

In assessing whether an offense qualifies as a

crime of violence, “the Supreme Court and other

Courts of Appeals have recognized that federal courts

are bound by the highest state court’s interpretations

of state law.” Matthews v. Barr, 927 F.3d 606, 622 n.11

(2d Cir. 2019) (citing cases). Thus, to determine the

minimum conduct necessary for a conviction, this

Court looks to the state “statute, as interpreted by the

New York Court of Appeals.” Id. at 621; see also United

States v. Drummond, 925 F.3d 681, 689-90 (4th Cir.

2

The use-of-force clauses in Section 924 are functionally

identical, so they are treated collectively as “Section 924” in this

brief.

4

2019) (“When evaluating a state court conviction for

ACCA predicate offense purposes, a federal court is

bound by the state court’s interpretation of state law,

including its determination of the elements of the

potential predicate offense. ... For statutory offenses,

we look to the physical actions specified in the statute,

and any state court decisions interpreting its terms.”

(cleaned up)).

In New York, “[a] person is guilty of murder in the

second degree when,” “[w]ith intent to cause the death

of another person,” for example, “he causes the death

of such person or of a third person.” N.Y. Penal Law

§ 125.25(1). Although N.Y. Penal Law § 125.25 lists

four other, alternative sets of scenarios with different

mens rea requirements that all count as second degree

murder, the indictment failed to charge a specific

subsection of this “divisible” statute. Cf. Descamps v.

United States, 570 U.S. 254, 257 (2013). But this

failure matters not for present purposes, because the

actus reus is the same in each subsection, and New

York’s highest court has repeatedly held that the

statute—and others with the same language—does

not require the application of physical force.

Under state law, “[t]he minimal requirement for

criminal liability is the performance by a person of

conduct which includes a voluntary act or the omission

to perform an act which he is physically capable of

performing.” N.Y. Penal Law § 15.10 (emphasis

added). This understanding is confirmed by Court of

Appeals of New York cases interpreting the crime of

first degree manslaughter under N.Y. Penal Law

§ 125.20, which differs from some subsections of the

State’s second degree murder statute only as far as the

applicable mens rea is concerned. See In re Dashawn

5

W., 21 N.Y.3d 36, 48 (2013). The actus reus, though, is

the same across the board.3

In explaining the same actus reus required for

first degree manslaughter, the Court of Appeals of

New York has held that harm caused by omission is

sufficient for a conviction. Put differently, a defendant

can be found guilty of first degree manslaughter in

New York without taking any action at all, so long as

there is a duty of care. See People v. Steinberg, 595

N.E.2d 845, 847 (N.Y. 1992).

Thus, for example, a parent who declines to seek

medical care for a child who has been severely injured

may be found guilty of first degree manslaughter in

New York. Steinberg, 595 N.E.2d at 847. As put by the

State’s highest court, “the failure to obtain medical

care” by a legal caretaker “can ... support a first degree

manslaughter charge, so long as there is sufficient

proof of the requisite mens rea—intent to cause serious

physical injury.” Ibid. “If the objective is to cause

serious physical injury, the mental culpability element

3

Compare N.Y. Penal Law § 125.20(1) (“A person is guilty of

manslaughter in the first degree when,” with “intent to cause

serious physical injury to another person, he causes the death of

such person or of a third person ... .”), with N.Y. Penal Law

§ 125.25(1) (“A person is guilty of murder in the second degree

when,” with “intent to cause the death of another person, he

causes the death of such person or of a third person ... .”), id.

§ 125.25(2) (same actus reus), id. at § 125.25(3) (actus reus is that

defendant “or another participant, if there be any, causes the

death of a person other than one of the participants” during an

enumerated felony), id. § 125.25(4) (actus reus is “causes the

death” of “another person less than eleven years old” “[u]nder

circumstances evincing a depraved indifference to human life”),

and id. § 125.25(5) (same actus reus as to “a person less than

fourteen years old”).

6

of first degree manslaughter is satisfied—whether or

not defendant had knowledge that the omission would

in fact cause serious injury or death.” Id. at 848.

The Court of Appeals of New York reiterated

Steinberg’s holding just a year later. According to the

court, even a “‘passive’ defendant” can be criminally

liable “predicated on an ‘omission.’” People v. Wong,

619 N.E.2d 377, 381 (N.Y. 1993). Thus, “where the

requisite proof [of intent] is present,” the court

explained, “a person in the position of the ‘passive’

defendant ... may be held criminally liable for failing

to seek emergency medical aid for a seriously injured

child.” Ibid. So long as a passive defendant can be

shown to be “personally aware” of the danger to the

victim, the defendant may be found “criminally liable

for failing to seek medical help” for the victim to whom

she owes a duty of care. Id. at 381-82.

2. These pronouncements of the law of second

degree murder and first degree manslaughter in New

York—from the State’s highest court—are all this

Court needs to find a “realistic probability” “that the

State would apply its statute” to criminalize

omissions. Moncrieffe v. Holder, 569 U.S. 184, 191

(2013) (quotation marks omitted). “Decisions from the

state supreme court best indicate a ‘realistic

probability,’ supplemented by decisions from the

intermediate-appellate courts.” United States v.

Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).

Because the Court of Appeals of New York has

defined the actus reus for second degree murder and

first degree manslaughter in the State, that is all that

is necessary to show the minimum conduct

criminalized by the state statute. See, e.g., Johnson v.

United States, 559 U.S. 133, 138, 140 (2010)

7

(Johnson I) (holding that Florida battery is not a

“violent felony” under Section 924 because the “Florida

Supreme Court has held that the element of actually

and intentionally touching under Florida’s battery law

is satisfied by any intentional physical contact, no

matter how slight” (quotation marks omitted)).

“We do not need to hypothesize about whether

there is a ‘realistic probability’ that [New York]

prosecutors will charge defendants” for omissions; “we

know that they can because the state’s highest court

has said so.” E.g., United States v. Aparicio-Soria, 740

F.3d 152, 158 (4th Cir. 2014) (so holding as to

Maryland prosecutors) (en banc). The “State actually

prosecutes the relevant offense,” see Moncrieffe, 569

U.S. at 206, based on omission. The defendants in

Steinberg and Wong were “actually prosecuted” based

on theories of the case that an omission alone is

enough to charge, and take to a jury, the analogous

crime of first degree manslaughter. Supra pp.5-6.

There is thus more than a “realistic probability” that

defendants will be prosecuted for these New York

crimes despite the lack of any force by the defendant

whatsoever. See Moncrieffe, 569 U.S. at 191 (“realistic

probability” of prosecution enough) (quotation marks

omitted). Prosecutors in the State have done so. And

the State’s highest court has affirmed such convictions

thus obtained.

B. Crimes that require zero physical action

by the defendant are not predicates

under the use-of-force clauses of the

ACCA.

Everyone agrees that New York second degree

murder only counts as a “crime of violence” for

8

purposes of the ACCA if the crime “has as an element

the use, attempted use, or threatened use of physical

force against the person ... of another.” 18 U.S.C.

§ 924(c)(3)(A); see 18 U.S.C. § 924(e)(2)(B)(i) (same as

to “‘violent felony’”). Everyone also agrees that the

Court looks to the minimum conduct necessary to be

convicted of second degree murder under New York’s

penal statute, which, again, provides that “[a] person

is guilty of murder in the second degree when,” in

various scenarios and with different levels of intent,

“he causes the death” of another person. See N.Y.

Penal Law § 125.25.

It is important to start, as always, with the text.

A previous conviction is a predicate “crime of violence”

for purposes of Section 924 when it “has an element

the use, attempted use, or threatened use of physical

force against the person or property of another.” 18

U.S.C. § 924(c)(3)(A). Crimes that can be committed by

a complete lack of action necessarily are not a “use” of

“physical force.” As this Court has held, “‘use’” in this

context “requires active employment.” Leocal v.

Ashcroft, 543 U.S. 1, 9 (2004) (quoting Bailey v. United

States, 516 U.S. 137, 145 (1995)). One cannot “use

physical force against” another by doing nothing, any

more than one can accidentally or even recklessly

“use” such force as the text of Section 924 requires. See

ibid. (holding that negligently or accidentally causing

damage does not “use” force as required under

analogous “crime of violence” definition in 18 U.S.C.

§ 16(a)) (cleaned up); see also Borden v. United States,

593 U.S. 420, 423 (2021) (“The question here is

whether a criminal offense can count as a ‘violent

felony’” under 18 U.S.C. § 924(e) “if it requires only a

mens rea of recklessness—a less culpable mental state

9

than purpose or knowledge. We hold that a reckless

offense cannot so qualify.”).

Indeed, describing complete inaction as the “use”

of “physical force” is perplexing—fairly described as a

“comical misfit” for Section 924’s text. See Johnson I,

559 U.S. at 145 (so holding as to nonviolent touching

for purposes of “‘violent felony’” definition in Section

924(e)). As the Court explained in Johnson I, “the

phrase ‘physical force’ means violent force—that is,

force capable of causing physical pain or injury to

another person.” Id. at 140 (emphasis original). When

one does nothing, it is not a use of force at all, let alone

a use of “violent force.” If “[d]e minim[is] physical force,

such as mere offensive touching, is insufficient to

trigger the ACCA’s force clause because it is not

violent,” United States v. Middleton, 883 F.3d 485, 489

(4th Cir. 2018) (explaining Johnson I), then no

physical force whatsoever (either direct or indirect)

cannot be considered “violent” force as required for

force-clause predicates under Section 924.

The Second Circuit cited United States v.

Castleman, 572 U.S. 157 (2014), to reason that the

harm to the victim is all that is required to show that

the defendant’s crime “involve[d] the use of force.” Pet.

App. 11a-12a. But that misunderstands Castleman.

Castleman did not purport to overrule Johnson I,

Leocal, or the like—which require the “active

employment” of “violent physical force.” On the

contrary, the Court expressly reserved the question.

See Castleman, 572 U.S. at 170 (whether resultant

injury “necessitate[s] violent force, under Johnson[ I]’s

definition of that phrase” is “a question we do not

decide”).

10

Rather, Castleman addressed (a) the level of force

necessary for a different statute that, unlike

Section 924, does not require violent force, and (b)

whether an active employment of force that indirectly

results in injury constitutes a use of force against

another, in the common-law sense. Castleman simply

doesn’t answer whether a failure to act satisfies the

force-clause requirement of Section 924.

As the Third Circuit recently explained, “an act of

omission does not constitute an act of physical force.”

United States v. Harris, 68 F.4th 140, 146 (3d Cir.

2023) (assessing a predicate offense under

Section 924(e)); see also United States v. Harris, 88

F.4th 458, 459 (3d Cir. 2023) (Jordan, J., concurring in

denial of rehearing en banc, joined by Chagares, C.J.,

and Hardiman, Krause, Bibas, Porter, and Matey, JJ.)

(same). To conclude otherwise would “conflate the

infliction of bodily injury with physical force.” Harris,

68 F.4th at 148. But this Court’s “Castleman decision

involved the common-law concept of force, and it

‘expressly reserved the question of whether causing

“bodily injury” necessarily involves the use of “violent

force” under the ACCA.’” Id. (quoting United States v.

Mayo, 901 F.3d 218, 228 (3d Cir. 2018)); see also Mayo,

901 F.3d at 230 (citing and quoting Castleman, 572

U.S. at 170-71, as “likening ‘the act of employing

poison knowingly as a device to cause physical harm’

or firing a bullet at a victim, to ‘a kick or punch,’ as

each act involves the ‘application’ or ‘use of force,’ even

though the resulting harm might occur indirectly”);

Villanueva v. United States, 893 F.3d 123, 129 (2d Cir.

2018) (reasoning that under Castleman, “the use of a

‘substance’ ... constitutes use of physical force, for

federal law purposes, because the relevant force is the

11

impact of the substance on the victim, not the impact

of the user on the substance”).

Castleman dealt with the meaning of force as

defined for misdemeanor crimes of domestic violence

under 18 U.S.C. § 922(g)(9). As the Court noted, that

statute does not require the use of violent force, unlike

the force clauses of Section 924. Rather, in

distinguishing Section 924, the Court held that

Section 922(g)(9) only requires the de minimis level of

force that was required at common law. Castleman,

572 U.S. at 163-66 (distinguishing Johnson I, where

the Court “declined to read the common-law meaning

of ‘force’ into [Section 924(e)]’s definition of a ‘violent

felony,’ because we found it a ‘comical misfit with the

defined term’”). The Court explained that the word

“‘violence’ standing alone ‘connotes a substantial

degree of force,’” but domestic violence is not just a

type of “‘violence’” but rather “a term of art

encompassing acts that one might not characterize as

‘violent’ in a nondomestic context.” Id. at 164-65

(quoting Johnson I, 559 U.S. at 140). Castleman’s

conclusion that causing bodily injury required the

application of physical force was based on this broader

definition of “physical force,” as the Court repeatedly

emphasized. See, e.g., id. at 170 (“It is impossible to

cause bodily injury without applying force in the

common-law sense.” (emphasis added)); ibid. (“[T]he

common-law concept of ‘force’ encompasses even its

indirect application.” (emphasis added)).

And Castleman dealt with whether a

commission—not total inaction—could meet the force

clause of the misdemeanor crime of domestic violence

definition in 18 U.S.C. § 921(a)(33)(A)(ii), even if that

action injured the victim indirectly. Because, unlike

12

the force clauses in Section 924, the misdemeanor

crime of domestic violence definition imported the

common-law definition of force (the level rejected in

Johnson I), the Court had to grapple with whether the

common-law concept of force encompassed only direct

applications of force—such as a kick or punch—or

whether it also encompassed indirect applications of

force—such as poisoning someone’s food or drink. 572

U.S. at 170-71. “It was in that context that the Court

concluded, ‘it is impossible to cause bodily injury

without applying force in the common-law sense.’”

Mayo, 901 F.3d at 228 (quoting Castleman, 572 U.S.

at 170) (emphasis added; brackets removed); see also

Castleman, 572 U.S. at 170 (noting that the element of

“force” in common-law battery “need not be applied

directly to the body of the victim”) (citation omitted).

Castleman’s concept of “indirect force” focuses on

commissions—for example, employing poisons or

pulling the trigger on a gun—not omissions, and does

so in the context of a statute that only requires the

common-law concept of force, not the violent force

required under Section 924. Castleman did not

address the issue presented here: Whether causing

injury without applying any force at all, but by

inaction, is a use of violent (not common law) force.

Leocal and Johnson I answer that question in the

negative.

Thus, the Second Circuit erroneously conflated

the use of violent force—as required by Section 924

and not for the misdemeanor crime of violence

definition—with the causation of injury. “[A]n offense

that results in physical injury, but does not involve the

use or threatened use of force, simply does not meet

the” force requirement of Section 924. Cf. United

13

States v. Torres-Miguel, 701 F.3d 165, 168 (4th Cir.

2012) (so holding as to sentencing guidelines),

abrogated on other grounds by Castleman as

recognized in United States v. Covington, 880 F.3d 129,

134 n.4 (4th Cir. 2018) (“Castleman did not however

abrogate the causation aspect of Torres-Miguel ... .”).

“Of course, a crime may result in death or serious

injury without involving use of physical force.” Ibid.

II. Congress Has Had Over Thirty Years To

Amend The Force Clauses Of Section 924 In

The Face Of Seemingly Unsatisfying Results

And Chosen Not To Do So.

To be sure, the categorical approach can

sometimes lead to seemingly odd or perhaps

discomforting results. But those results are merely the

byproduct of Congress’s chosen text—language it has

left undisturbed despite this Court’s long-standing

interpretation and application of the categorical

approach.

The Court has repeatedly found that Section 924’s

text requires the elements-focused inquiry. See, e.g.,

Shepard v. United States, 544 U.S. 13, 19-20 (2005).

Section 924, by its plain terms, enhances the sentence

for a criminal defendant with certain “‘previous

convictions.’” Mathis v. United States, 579 U.S. 500,

511 (2016) (quoting 18 U.S.C. § 924(e)(1)) (emphasis

added). The focus, then, is on the criminal statute’s

elements, not on “what the defendant had actually

done.” Ibid. Congress could have constructed an

alternate system for establishing predicate offenses.

And had it wished to do something different,

“Congress well knows,” for example, “how to instruct

sentencing judges to look into the facts of prior

14

crimes,” given that “different language” in other

statutory schemes requires as much. Ibid. But

“Congress chose another course in ACCA.” Ibid.

In case there were any doubt of Congress’s intent,

Taylor v. United States, 495 U.S. 575 (1990), which

“set out the essential rule governing [Section 924]

cases,” was decided “more than a quarter century ago.”

Mathis, 579 U.S. at 509 (so reasoning almost a decade

ago). In the time since, Congress has not legislated

around this Court’s interpretation of the text. See id.

at 521 (Kennedy, J., concurring) (noting that

“Congress is capable of amending the ACCA”). Cf.

Shepard, 544 U.S. at 23 (“In this instance, time has

enhanced even the usual precedential force, nearly 15

years having passed since Taylor came down, without

any action by Congress to modify the statute as subject

to our understanding that it allowed only a restricted

look beyond the record of conviction under a

nongeneric statute.”). That absence of contrary

legislation is further evidence of Congress blessing the

categorical approach, warts and all. See, e.g., Neal v.

United States, 516 U.S. 284, 295-96 (1996) (noting that

the Court “give[s] great weight to stare decisis in the

area of statutory construction” because Congress “has

the responsibility for revising its statutes”).

Judges have sometimes expressed frustration

with the results of categorical-approach inquiries.

This is true, for example, with the Third Circuit in its

on-point (and correct) opinion in Harris. It reached

that result because “the Supreme Court of

Pennsylvania,” in answering a certified question

directly asking whether the State’s first-degree

assault statute has the required force element,

responded: “‘there is no express element in [the

15

Pennsylvania criminal statute] requiring the use or

attempted use of physical force, or any reference to

force at all.’” Harris, 88 F.4th at 463 (quoting United

States v. Harris, 289 A.3d 1060, 1070 (Pa. 2023))

(Jordan, J., concurring in denial of rehearing en banc,

joined by Chagares, C.J., and Hardiman, Krause,

Bibas, Porter, and Matey, JJ.). The Pennsylvania high

court “observe[d] that ‘the General Assembly was

cognizant of how to codify the manner of causing a

particular bodily injury as an element of the crime.

The legislature did not restrict the manner of causing

or attempting to cause serious bodily injury” in the

statute, so the Supreme Court of Pennsylvania

“‘decline[d] the invitation to do so by judicial fiat.’”

Ibid. (quoting Harris, 289 A.3d at 1070-71).

The Third Circuit described this as “yet another

absurd result dictated by the categorical approach.”

Harris, 88 F.4th at 465 (Jordan, J., concurring in

denial of rehearing en banc, joined by Chagares, C.J.,

and Hardiman, Krause, Bibas, Porter, and Matey,

JJ.). “How on Earth did we end up here?,” the court

asked. Ibid. It then answered, in a thorough

explanation, that this is the result required by this

Court’s interpretation of the plain text of Section 924.

See id. at 465-75. Even when the defendant’s previous

“crime was violent, even murderous,” it does not count

as a predicate crime of violence under the ACCA so

long as the statute of conviction “encompass[es] acts

that do not involve the use of physical force.” Id. at

473. That is the approach that Congress has chosen to

leave in place—and the one this Court, too, must

continue to faithfully apply.

Indeed, the categorical approach has “certain

practical advantages,” for example, avoiding Sixth

16

Amendment concerns. See United States v. Kroll, 918

F.3d 47, 53-54 (2d Cir. 2019) (applying the categorical

approach under 18 U.S.C. § 3559(e)). Despite

criticizing the method, the Third Circuit recognized

that “the result of applying the categorical approach

sometimes makes sense.” Harris, 88 F.4th at 459

(Jordan, J., concurring in denial of rehearing en banc,

joined by Chagares, C.J., and Hardiman, Krause,

Bibas, Porter, and Matey, JJ.).

But all this is beside the point. Faithfully applying

the categorical approach and the text of Section 924,

as interpreted by this Court, ought clearly to lead the

Court to conclude that crimes that can be committed

by inaction, as a categorical matter, simply do not have

the use of violent force as an element.

CONCLUSION

Amicus Curiae NAPD respectfully urges the

Court to grant the petition for a writ of certiorari.

February 29, 2024

Respectfully submitted,

Emily Hughes

NATIONAL ASSOCIATION

FOR PUBLIC DEFENSE

130 Byington Road

Iowa City, IA 52242

Daniel Woofter

Counsel of Record

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 240-8433

dw@goldsteinrussell.com