United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3960

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Greg Alan Cannon, on behalf of itself *

and all others similarly situated, *

*

Appellee, *

*

v. *

*

Garland County, Arkansas, on behalf *

of itself and all others similarly *

situated; Larry Selig, Garland County *

Sheriff, on behalf of himself and all * Appeal from the United States

others similarly situated; Roy L. * District Court for the

Elliott, Lt. (#138) on behalf of himself * Western District of Arkansas.

and all others similarly situated; D. *

Breizledine, on behalf of himself and * [UNPUBLISHED]

all others similarly situated; *

*

Defendants, *

*

State of Arkansas, Winston Bryant, *

*

Intervenor below - *

Appellant. *

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 Submitted: February 27, 1998

 Filed: April 15, 1998

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Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.
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PER CURIAM.

The State of Arkansas appeals the District Court’s ruling that the provisions of

Ark. Code Ann. §§ 20-47-201 et seq. (Michie 1991), which set forth the time frames

for filing involuntary civil commitment petitions and for holding hearings, are

unconstitutional as they do not afford minimum due process to detainees. Because we

conclude that Greg Alan Cannon lacked standing to bring a facial constitutional

challenge to these statutes, we vacate the District Court’s judgment insofar as it holds

these statutes facially unconstitutional, and remand with instructions that the District

Court dismiss the case for want of jurisdiction.

On Saturday, May 14, 1994, Garland County sheriff’s deputies arrested Cannon,

who had been firing his gun inside his mobile home, drinking heavily, and insisting he

wanted to kill his estranged girlfriend and himself. The deputies decided to seek help

for Cannon by committing him to a mental health treatment facility. They arrived at a

detention center around 2:19 a.m. on Saturday, and a deputy then prepared a petition

for Cannon’s involuntary commitment. At 9:30 a.m., a mental health care professional

evaluated Cannon and concluded he should remain in custody. The petition concerning

Cannon was processed with the probate court on Monday morning, May 16. The

probate court ordered that Cannon be evaluated again, and after this evaluation

concluded that he should not be involuntarily committed. Cannon was released at 1:00

p.m. on Monday, approximately fifty-nine hours after he had been originally detained.

Cannon filed a complaint under 42 U.S.C. § 1983 (1994) against Garland County,

Arkansas, the sheriff of that county, and a sheriff’s deputy; Cannon unsuccessfully

sought class certification. He claimed that he had been detained unconstitutionally for

longer than forty-eight hours, and that Ark. Code Ann. § 20-47-210(a) is

unconstitutional on its face, violating the Fourth and Fourteenth Amendments, because

it permits a person to be detained for more than forty-eight hours before a
According to Wessel, when an allegedly mentally ill person is involuntarily

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confined under emergency circumstances, an initial petition for confinement must be

filed within twenty-four hours following detention--excluding weekends and holidays--

and the detainee must be afforded an initial appearance in court within twenty-four

hours of the petition’s filing and a probable cause hearing within seventy-two hours of

the initial appearance. Wessel, 416 F. Supp. at 1147. In 1979, relevant legislation was

passed in Arkansas, and we note that under Ark. Code Ann. § 20-47-210(a)(1), a

petition must be filed within seventy-two hours--excluding weekends and holidays--

after a person is detained, and a hearing must be held within three days--excluding

weekends and holidays--of the petition’s filing.

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probable cause hearing is held. He requested declaratory and injunctive relief and

damages.

Following a bench trial, the District Court determined that Cannon’s due process

rights had not been violated, and that as a matter of law his complaint against

defendants lacked merit. The Court further concluded, however, to the extent the

Arkansas statutes conflict with Wessel v. Pryor, 461 F.Supp. 1144 (E.D. Ark. 1978),

the statutes are unconstitutional on their face. In Wessel, an Arkansas District Court

approved procedures for involuntarily committing a person to an institution, which were

to remain in effect “only until the effective date of legislation” addressing the subject.1

See id. at 1145-46. Here, the District Court examined Wessel, found that the Arkansas

statutes fail to afford minimum due process, and ordered that Wessel be “reaffirmed

with the effect that the requirements laid down therein as the minimum necessary for the

due process in involuntary civil commitment proceedings shall still be such until the

Arkansas Legislature shall act.” The State intervened, and on appeal challenges the

District Court’s decision that the statutes are unconstitutional on their face.

In every case before a federal court, standing is a threshold question, and

appellate courts have the duty to scrutinize cases for jurisdictional defects. See United

States v. Hays, 515 U.S. 737, 742 (1995). To invoke federal jurisdiction, a party must
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allege an actual case or controversy, demonstrating "a personal stake in the outcome"

and showing he or she sustained or was “immediately in danger of sustaining some

direct injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (quoting prior

cases). The alleged injury must be “distinct and palpable,” and likely to be redressed

by a favorable decision. Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 475 (1982) (internal quotation

marks omitted); see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,

298 (1979) (noting no case or controversy exists when allegedly unconstitutional

situation is “hypothetical or abstract”; plaintiff must show "a realistic danger of

sustaining a direct injury as a result of the statute’s operation or enforcement").

Although Cannon clearly had standing to bring an “as applied” challenge to the

Arkansas statutes at issue, we conclude he lacked standing to assert a facial

constitutional challenge. We do not believe Cannon’s facial challenge presented a case

or controversy, as he failed to meet his burden of showing an actual or threatened injury

that would likely be redressed by a favorable decision. See Lyons, 461 U.S. at 105-06

(concluding, although police officers applied “chokehold” to Lyons, he lacked standing

to seek declaratory judgment or injunction barring police use of chokeholds; Lyons may

have damages claim, but such does not establish real and immediate threat that he would

again be stopped by officer who would illegally choke him; to establish controversy,

Lyons must allege that he would have another police encounter and that all officers

always choke citizens, or that City ordered officers to act in such manner); Ashcroft v.

Mattis, 431 U.S. 171, 171-73 (1977) (per curiam) (concluding father seeking damages

and declaratory judgment that statute authorizing police to use deadly force was

unconstitutional lacked standing; although son had been killed while attempting to

escape arrest and father had another son who might be “in danger of being killed,”

speculation is insufficient to establish present controversy); O’Shea v. Littleton, 414

U.S. 488, 493-96 (1974) (stating that, although some class members claimed to have

suffered from unconstitutional practices, past exposure to illegal
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conduct does not show present case or controversy regarding injunctive relief if

unaccompanied by present adverse effects).

Accordingly, we vacate the District Court’s judgment holding the statutes

unconstitutional, vacate the order reaffirming the requirements of Wessel, and remand

the case with instructions to dismiss the facial constitutional challenge for want of

jurisdiction.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.