Legal Docket: Defining violence and fairness

NICK EICHER, HOST: It’s The World and Everything in It for this 2nd day of December, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Today, we meet Fat Sal. That of course is a nickname. He’s Salvatore Delligatti, and if the U.S. government is to be believed he’s an associate of the Genovese Crime Family.

The conflict that has Fat Sal’s fate in front of the U.S. Supreme Court begins with a bully by the name of Joseph Bonelli, who operated in a particular neighborhood in Queens, New York.

EICHER: Bonelli was believed to be a snitch. He was thought to be cooperating against some of the local bookies, and that made him a threat to the Family’s gambling business.

So, when a local businessman paid Sal to get rid of Bonelli, the hit was on.

Sal split the cash with his boss and hired members of the Crips to do the dirty work. He gave them a car, a .38 revolver, and a simple plan: ambush Bonelli.

REICHARD: The first attempt fell apart, though, when the crew saw potential witnesses and backed off.

Sal was not pleased. He demanded they return and kill not just Bonelli, but anyone with him. The crew promised to try again the next day. Armed with the same .38 and even bleach to clean up the scene, they headed back.

EICHER: This time, they didn’t find an unsuspecting target. They found lights and badges.

Police arrested the crew near Bonelli’s home.

But Sal wasn’t done. After the failed hit, he regrouped with his crew. “Maybe next time,” he said. But next time never came. The law had him in its sights, and the game was over.

REICHARD: Six years ago, Sal was convicted on a gun charge that added five years to a 20-year prison sentence he’d received for other crimes. The conviction came under part of the law known by the acronym ACCA—the Armed Career Criminal Act—that makes it a federal crime to … possess a firearm in furtherance of a crime of violence.

But “Fat Sal” is fighting the five years. He doesn’t dispute providing the .38 and the getaway car to the crew he paid for the hit. But because they failed, there was no “crime of violence.”

EICHER: That’s the legal argument. So Fat Sal’s lawyer is making the case that the conviction relied on a federal law that doesn’t apply. Congress’s purpose in passing ACCA was to combat the “violent, aggressive, and purposeful” conduct of armed career criminals. Crimes of omission don’t fit that mold.

Here’s his lawyer Allon Kedem:

KEDEM: Using physical force against another requires taking some step to bring force into contact with the victim. That can happen directly, as with a kick or a punch, or indirectly, such as giving a gentle push to someone teetering on the edge of a cliff. But it does not involve an offense that can be committed by pure omission, such as failing to render aid to someone suffering from a natural disorder.

In other words, not taking an action is opposite of taking an action. Not acting to prevent harm might be legally wrong in some situations and also morally wrong. But it’s not in the same category as using violent physical force against another person.

Justice Clarence Thomas pressed Kedem for the boundaries beyond a kick or a punch, or a gentle push, off a cliff:

THOMAS: So, in your thinking, if you poison someone and thereby cause the death of that person, that is, under your argument, treated differently from withholding critical, say, heart medicine when someone is in the process of having a heart attack?

KEDEM: That's correct, Your Honor. So this Court has described poison as having forceful physical properties that you would have put into contact with the victim by putting it in their drink. That’s a very different situation than if it's a congenital disorder.

Kick, punch, push, poison; Justice Sonia Sotomayor tried another angle to find the line:

SOTOMAYOR: I mean, I could be in a restaurant watching someone die, but I have no obligation even if I know the Heimlich maneuver to do it. However, if it’s a child and my child, I have an obligation to try to save them.

KEDEM: That’s correct. And it’s a serious offense-

SOTOMAYOR: So I’m letting nature use its force to kill that child.

KEDEM: So…there's no dispute that it is criminally culpable behavior and can be punished severely. But the question is, is there violent force being applied to the victim and have you actively employed that force? And in a situation where, for instance, you just don't provide medicine or nutrition to someone and they slowly expire, there is no violent physical force of any sort.

REICHARD: Justice Neil Gorsuch mentioned that omissions are often just as bad as actions … and they are not always easy to distinguish. Especially when there is a pre-existing duty of care that is not attended to.

He made reference to the proverbial Little Old Lady and to a retired justice who was known for his fantastical hypotheticals:

GORSUCH: Someone comes across the street, sees that the manhole cover's open, doesn't rescue the little old lady who steps into it --because this person has animus toward little old ladies. Now an extreme hypothetical. Justice Breyer might be proud. (laughter) That would be murder in a state with a good Samaritan statute. Physical force, I guess the gravity's --I mean, what --what more powerful force in the universe is there than that? Would that in your view fall within the government's understanding of what would qualify as the application of violent force?

KEDEM: It would have to. The government's view essentially is anytime you have a bad result, you know that there must have been violent physical force, which means that not only would the death or other injury in your example be violent physical force, it would also be involved in literally every death since the beginning of time because, in every death, something bad happens because you either are injured or run out of the cellular inputs necessary to sustain life.

EICHER: The government on the other side argued Fat Sal should serve extra time for possessing a gun as a felon. Here’s Eric Feigen, Deputy Solicitor General:

FEIGEN: It's hard to believe that we're actually here debating whether murder is a crime of violence….This is one case where the law already tracks common sense….And there's really no basis in law or logic to draw a distinction between the person who gently sprinkles poison in the cup and the person who, hating the victim, just withholds the antidote. By urging that distinction, Petitioner is asking this Court to discard literally two millennia of common law that treat acts of omission just like other acts.

Fat Sal’s intent matters, he argued. And he intended murder.

Justice Elena Kagan commented on having her pick of absurdities, including one Justice Ketanji Brown Jackson offered about a lifeguard who hates a particular child and watches the child drown rather than jump in and save her.

KAGAN: So, it’s almost as though we have to pick our absurdity. You started with one absurdity. We would say that murder is not a crime of violence. That seems pretty absurd. But here's another absurdity. The lifeguard is just sitting up there watching somebody, is using physical force. That seems pretty weird too.

FEIGEN: So, Your Honor, I think your two questions, as Your Honor probably recognizes, really pair together here. And the reason that we have two millennia of law that don't draw this distinction is precisely because it is a word game.

The case comes down to balancing government overreach with giving prosecutors the tools they need to take down the Mafia. The Genovese Crime Family has been particularly difficult to catch and prosecute over the years.

REICHARD: For our second and final case today, we shift from the Mafia to Medicare.

More than 200 hospitals sued the Department of Health and Human Services, alleging it’s short-changed the hospitals billions of dollars to cover the medical costs of low-income patients.
The dispute is really over the formula HHS uses to figure out what it owes. In the Medicare program, hospitals serving a significant number of poor Medicare patients receive additional money from the government to cover those costs. It’s a program with Medicare called "DiSH,” an acronym for "Disproportionate Share Hospital."

EICHER: The hospitals say HHS doesn’t count patients the right way, and that’s what causes the shortchanging.

But for its part, HHS argues it is following the law by only counting Medicare patients who also qualify for SSI each month—the Supplemental Security Income cash payment during their hospital stay.

Here’s government lawyer Ephraim McDowell:

MCDOWELL: The Medicare fraction uses two distinct phrases, "entitled to benefits under Medicare Part A" and "entitled to SSI benefits under Title XVI." And while the word "entitled" means the same thing within both phrases, benefits under Medicare Part A are fundamentally distinct from SSI benefits under TItle XVI.

REICHARD: Justice Jackson had her doubts about that argument, given the purpose of the law in the first place:

JACKSON: I'm struggling to understand why an individual's eligibility for payment in a particular month has any bearing on the goals of compensating hospitals for the higher cost of low-income people. So let me give you a hypothetical. Imagine a man who's lived well below the poverty line for his entire life. He has a range of health conditions that result from that kind of upbringing. When he turns 65 in January, he applies for SSI payments and starts receiving them in February pursuant to the statute and the regulations. Let's say in June he comes into a bit of cash. He inherits some jewelry. He sells it. He picks up an extra shift at work. He gets money back from a friend who owes it to him, okay? We can all agree that if the extra cash he gets in June brings him above the threshold, he doesn't get a cash payment that month because now he's above the threshold. But the Medicare fraction, I thought, was not about how much cash a patient had in any particular month. It's about how costly it would be to treat this person. And I don't understand why it is less or more costly in June, when he has the heart attack, than in May, when he didn't -when he doesn't get the cash payment.

McDOWELL: So, Your Honor, I think that understanding of the statute rests on an erroneous premise in Petitioners' argument…

For the hospitals on the other side, lawyer Melissa Arbus Sherry resisted accusations of an “erroneous premise” with Justice Jackson’s line of thought:

SHERRY: In the end, this is about DiSH, and DiSH is about ensuring that hospitals are reimbursed for low-income patients that are less healthy and that are costlier to treat, and health does not change overnight. The government's interpretation simply does not count that low-income population. It does not count the low-income Medicaid patient coming out of a nursing home. It does not count the low-income patient waiting for her first check. And the list of those it does not count goes on and on.

The justices will need to balance the law’s intent with practical outcome, as hospital closures are increasing, particularly in rural areas. It seemed to me listening to the oral argument that the justices were split as to what to do. With more than $9 billion dollars on the line, it matters a great deal.

And that’s this week’s Legal Docket!

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