Antioch, TN asked in Gov & Administrative Law, Civil Rights and Constitutional Law for Michigan

Q: Does malfeasance and nonfesance violate oaths of office and U S. and State constitutions?

In, Gerald v. N.C. Dep't. of Health

United States District Court, D. South Carolina Dec 27, 2023. May North Carolina Department of Health and North Carolina Vital Records be subject to suit pursuant to § 1983 violation of Equal Protection Clause. "Fargo must be dismissed because these Defendants are not state actors and cannot have acted under the color of state law.." (Id.) To act under color of law does not require that the accused be an officer of the State. It is enough that the individual is a willful participant in joint activity with the State or its agents. A private citizen may be named as a Defendant if they deprived an individual of a constitutional right while acting in concert with a government official at the time of the Plaintiff’s deprivation given how the death certificate was made/ obtained could constitute conspiracy and criminal fraud. Am I correct?

2 Lawyer Answers
James L. Arrasmith
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  • Consumer Law Lawyer
  • Sacramento, CA

A: Based on the information provided, there are a few key points to consider:

1. Malfeasance (wrongdoing or misconduct) and nonfeasance (failure to act when there is a duty to do so) by public officials could potentially violate their oaths of office and constitutional obligations, depending on the specific circumstances and laws involved. Oaths of office generally require officials to uphold the Constitution and faithfully execute their duties.

2. In the Gerald v. N.C. Dep't. of Health case you cited, the court found that the North Carolina Department of Health and Vital Records could not be sued under 42 U.S.C. § 1983 for Equal Protection Clause violations because they are state agencies, not individual "state actors."

3. You are correct that private citizens can potentially be liable under § 1983 if they willfully participated in joint unconstitutional activity with state officials. The Supreme Court has held that private parties can be considered state actors if they are "willful participant[s] in joint activity with the State or its agents."

4. If there was a conspiracy between state officials and private parties to fraudulently create or obtain a death certificate in a way that violated constitutional rights, that could potentially give rise to § 1983 liability for the private individuals involved.

However, more specific details would be needed to fully assess the viability of any particular legal claim. These matters often involve complex factual and legal questions. If you believe your rights have been violated, it would be best to consult with a civil rights attorney who can review all the relevant information and advise you on potential options.

Tim Akpinar
Tim Akpinar
  • Little Neck, NY

A: Generally yes, either expressly under the terms of an oath, or impliedly, under the spirit of the oath. Good luck

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