United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3960

___________ 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 and all others similarly situated; D. * Breizledine, on behalf of himself and * [UNPUBLISHED] all others similarly situated; * * Defendants, * * State of Arkansas, Winston Bryant, * * Intervenor below - * Appellant. *

___________ Submitted: February 27, 1998 Filed: April 15, 1998

___________ Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circui t Judges.-2-

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 forfilin g involuntary civil commitment petitions and for holding hearings, ar e unconstitutional as th ey do not afford minimum due process to detainees. Because we
co nclude that Greg Alan Cannon lacked standing to bring a facial constitutiona l challenge to these statutes, we vacate the District Court’s judgment insofar as it holds the se statutes facially unconstitutional, and remand with instructions that the Distric t Court dismiss the case for want of jurisdiction.
On Saturday, May 14, 1994, Garland County sher iff’s deputies arrested Cannon, who had b een 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 petitio n for Cannon’s involuntary commit ment. At 9:30 a.m., a mental health care professional evaluated Cannon and concluded he should remain in custody. The petition concerning Cannon w as processed with the probate court on Monday morning, May 16. Th e prob ate court ordered that Cannon be evaluated again, and after this evaluatio n concluded that he should not be involuntarily committed. Cannon was released at 1:00 p.m. on Mond ay, approximately fifty-nine hours after he had been originally detained.
Cannon filed a complaint under 42 U.S.C. § 1983 (1994) against Garland Cou nty, Arkansas, the sheriff of that county, and a sheriff’s deputy; Cannon unsuccessfull y sought class certif

ication. He claimed that he had been detained unconstitutionally for longer than forty-eight hours, and that Ark. Code Ann. § 20-47-210(a) i s 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 aAc cording to Wessel , when an allegedly mentally ill person is involuntaril y 1 confinedunder emergency circumstances, an initial petition for confinement must be filed within twenty-four hours following detentio n--excluding weekends and holidays-- and the det ainee must be afforded an initial appearance in court within twenty-fou r 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 197 9, 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-

- af ter a person is detained, and a hearing must be held within three days--excludin g weekends and holidays--of the petition’s filing. -3- pr obable cause hearing is held. He requested declaratory and injunctive relief an d damages.
Following a bench trial, the District Court de termined that Cannon’s due process right s had not been violated, and that as a matter of law his complaint agains t defe ndants lacked merit. The Court further concluded, however, to the extent th e Arkansas statutes conflict with Wessel v. Pryor , 461 F.Supp. 1144 (E.D. Ark. 1978), th e statutes are unconstitutional on their face. In Wessel , an Arkansas District Cour t 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 statut es fail to afford minimum due process, and ordered that Wessel be “reaffirme d 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 th e Arkansas Le gislature shall act.” The State intervened, and on appeal challenges th e District Court’s decision that the statutes are unconstitutional on their face.

In every case before a federal court, standing is a threshold question, an d 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-4-

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 som e direct injury.” City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1 983) (quoting prior
c a ses). The alleged injury must be “distinct and palpable,” and likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United fo r Separ ation of Church and State, Inc. , 454 U.S. 464, 475 (1982) (internal quotatio n
mar ks 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 unconstitutiona l situation is “hypothetical or abstract”; plaintiff must show "a realistic danger o f 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 Arkan sas statutes at issue, we conclude he lacked standing to assert a facia l constitutional challenge. We do not believe Cann on’s facial challenge presented a case or controversy, as he failed to meet his burden of showing a n 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 applie d “chokehold” to Lyons, he lacked standing to seek declaratory judgment or injunction barring police u se of chokeholds; Lyons may have damages claim, but such does not establish real and immediate threat t hat he would again be stopped by officer who would illegally choke him; to establish controversy , Ly ons must allege that he would have another police encounter and that all officer s always choke citizens, or

that City ordered officers to act in such manner); Ashcroft v. Mattis , 431 U.S. 171, 1 71-73 (1977) (per curiam) (concluding father seeking damages and declaratory judgment that statute authorizing police to use deadly force wa s
uncons titutional lacked standing; although son had been killed while attempting t o escape arr est and father had another son who might be “in danger of being killed, ” specula tionis insufficient to establish present controversy); O’Shea v. Littleton , 41 4 U.S

. 488, 493-96 (1974) (stating that, although some class members claimed to hav e suffered from unconstitutional practices, past exposure to illegal-5-

conduct does not show present case or controversy regarding injunctive relief i f unaccompanied by present adverse effects).

Ac cordingly, we vacate the District Court’s judgment holding the statute s unconstitutio nal, vacate the order reaffirming the requirements of Wessel , and remand the case w ith instructions to dismiss the facial constitutional challenge for want o f jurisdiction.
A true copy.

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