Does a crime of physical inaction, in which the inaction is deemed the cause of injury or death, have as an element the 'use of physical force against the person of another' under 18 U.S.C. § 924(e)(2)(B)(i) and equivalent provisions at § 16(a), § 924(c)(3)(A) and § 3156(a)(4)(A)?

QUESTION PRESENTED In most states, physical inaction can be criminal. But an oft-invoked provision of federal law is triggered only by crimes that require the “use of physical force against the person or property of another.” In the split en banc decision here, the Second Circuit ruled a crime requiring “no physical action” nonetheless requires “the use of physical force.” The question presented is: Does a crime of physical inaction, in which the inaction is deemed the cause of injury or death, have as an element the “use of physical force against the person of another” under 18 U.S.C. § 924(e)(2)(B)(i) and equivalent provisions at § 16(a), § 924(c)(3)(A) and § 3156(a)(4)(A)? Four circuits say no, six circuits say yes, and one circuit says both. 1