Tuesday, October 3rd, 2023

Attempted Murder is a Crime of Violence (For Now)

In yesterday’s United States v. Pastore, the Circuit (Walker, Sullivan, Nathan, C.JJ.) held attempted murder in aid of racketeering – specifically, attempted New York murder – is a “crime of violence” under 18 U.S.C. § 924(c).

The Circuit reasoned that, because murder requires someone to intentionally “’cause the death of another person,'” Slip Op. at 14 (quoting N.Y. Penal Law § 125.25(1)), and because “intentionally causing the death of another person involves the use of force,” id., attempting to murder requires the “attempted use . . . of physical force against the person . . . of another.”  § 924(c)(3)(A).

The Supreme Court’s ruling in United States v. Taylor, 142 S. Ct. 2015 (2022), the Circuit said, does not compel otherwise.  The Court there held attempted Hobbs Act robbery is not a “crime of violence” given that it can be committed by means of an “attempted threat of force – which need not involve the ‘use, attempted use, or threatened use of physical force,’ 18 U.S.C. § 924(c)(3)(A).”  Slip Op. at 16 (emphasis in Pastore).  Murder, on the other hand, “cannot be committed through the mere threat of force,” id, and thus attempted murder requries “a ‘substantial step toward the use of physical force’ – and not just a substantial step toward the threatened use of physical force.”  Id. (emphasis in original).

The Circuit, constrained by United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc), rejected Pastore’s argument that murder can be attempted by omission – say, failing to call 911 when one’s charge goes into cardiac arrest – which involves no “use of physical force against the person.”  § 924(c)(3)(A).  The Scott court held such inaction constitutes a “use of physical force,” but there’s a circuit split on this question.  Thus, until the Supreme Court resolves this dispute, litigants should continue to argue that crimes that can be committed by inaction are not “violent.”

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