Mattis v. Schnarr Opinion with cover letter

    ROBERT C. TU C KE R. CLERK

îiitcb ̂ fatcs (Coirt of J\ppc:ils
FOR TH E  EIGHTH C IR C U IT  

ST. L O U IS .  MO. 63101August 23, 1974
Mr. Eugene H. Buder 
411 N. 7th St., Suite 808 
St. Louis, Missouri
Mr. Richard D. Baron
569 Melville Avenue
St. Louis, Missouri 63130
Hon. John C. Danforth 
Attorney General State Capitol 
Jefferson City, Missouri
Mr. Joel M. Gora 
156 Fifth Avenue 
New ^k, N. Y. 10010

Mr. j.. Leonard V/alther 
Brackman,Copeland,Getting,
Copeland, VZalther&Schmidt130 S. Beiniston 

Clayton, Missouri 63105
Messrs. Husch, Eppenberger, 
Donohue,Elson&Cornfeld 7 N. 7th St.
St. Louis, Missouri
Mr. Eugene K. Buckley 
Evans & Dixon 
506 Olive St.
St. Louis, Missouri 63101
Messrs. Moser, Marsalek,

Carpenter, Cleary, Jaeckel, Keaney & Brown 
330 Pierce Bldg.
St. Louis, Missouri 63102

Re: No. 73-1511^ Mattis v. Schnarr.
Dear Sirs:

Enclosed herewith to each of you is copy of the opinion 
of this Court filed today in the above case. Judgment of this 
Court in accordance with the opinion is also entered today.

Very truly yours.

eh
enc.

Robert C. Tucker, 
Clerk



United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 73-1511

Robert Dean Mattis, M.D.,
Appellant,

V.

Patrolman Richard R. Schnarr, 
Police Officer, City of Creve 
Coeur, Missouri; and Sgt. 
Robert Marek, Police Officer, 
City of Olivette, Missouri,

Appellees.

*
*  •

*
* 
ic 

*
★
*
*

★
*

*

*

Appeal from the United States 
District Court for the 
Eastern District of Missouri,

Submitted: November 16, 1973
Filed: August 23, 1974

Before GIBSON, LAY and HEANEY, Circuit Judges,

HEANEY, Circuit Judge.

Plaintiff appeals an order entered in this civil rights 
action by the United States District Court for the Eastern 
District of Missouri denying his prayer for damages^ and 
declaratory judgment.

The case was tried below upon stipulated facts. The 
plaintiff's minor son, Michael, age eighteen, was shot and 
killed by defendant Marek, a police officer, while

No appeal is taken from that' part of the trial court' s 
order denying plaintiff's damages. This action was 
originally commenced by Dr. Mattis and his wife, Christine 
Mattis, who died while the action was pending.



attempting to escape arrest. Michael and another youth, 
Thomas Rolf, age seventeen, had entered the office of a golf 
driving range at night for the purpose of taking money by 
opening an unlocked windov;. Marek and another officer 
attempted to arrest the two youths who ran in different 
directions. Marek ran into Mattis, Mattis broke away and 
Marek pursued. Marek was losing the race and shouted, "Stop 
or 1*11 shoot." Mattis failed to stop and Marek fired one 
shot (he believed he fired well above Mattis) which struck 
Mattis in the head. Marek and the other officer would;

* * * testify that their use of their guns 
in the manner described was reasonably 
necessary under the circumstances and was 
authorized by the statutes of the State of 
Missouri and that such statutes were valid 
and lawful.

Matti-s V. Kisslingj et at.. Civil No. 72-Civ. (3)(E.D. Mo.,
filed January 16, 1973).

The trial court initially held that the plaintiff had 
standing to bring this action under Title 42 U.S.C. §1983.
It reasoned that the section did not create a new cause of 
action in favor of a person for the wrongful death of 
another, but that §1988 of the same title authorizes resort 
to state law to determine whether a cause of action survives 
for the wrongful death of another. Pritchard v. Smith,
289 F.2d 153 (8th Cir. 1961). It further reasoned that 
since Missouri law (V.A.M.S. §537.080) permits a father 
to bring a wrongful death action for the death of an 
unmarried minor son, the father had standing to bring this

V.A.M.S. §537.080. 
death— who may sue

Action for wrongful

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action.

Whenever the death of a person shall be 
caused by a wrongful act * * * and the act 
* * * is such as would, if death had not 
ensued, have entitled the party injured to 
maintain an action and recover damages in 
respect thereof, then, and in every such 
case, the person who or the corporation 
which would have been liable if death had 
not ensued shall be liable to an action for 
damages, notwithstanding the death of the 
person injured, which damages may be sued 
for and recovered.

(1) By the spouse or minor children, 
natural or adopted, of the deceased, either 
jointly or severally; * * *

(2) * * * [I]f the deceased be a minor 
and unmarried, then by the father and mother, 
natural or adoptive, v;ho may join in the 
suit, and each shall have an equal interest 
in the judgment; or if either of them be 
dead, then by the survivor; or if the surviv­
ing parents are unable ot decline or refuse 
to join in the suit, then either parent may 
bring and maintain the action in his or her 
name alone, for rhe use and benefit of both 
such parents; * * *

Accord, Brazie 
cert, denied, 368 U. 
Hospital of Joliet, 
(N.D. 111. 1972); Pe 
1326-1327 (D. Conn, 
provide right of act 
222-223 (D. Colo. 19 
930 (S.D. Cal. 1966) 
Civil Practice 117, 
1153, 1158, §4 (a) (19 
404, the Court said:

r V.  Cherry, 
S. 921 (1961) 
Illinois, 340 
rkins V.  Sala 
1972)(looked 
ion); Salazar 
6 6); Ga Undo 
; C. Antieau, 
591 (1971). 
63). In Braz

293 F.2d 401 (5th Cir.),
; Holmes v. Silver Cross 
F.Supp. 125, 128-129 

fia, 338 F.Supp. 1325, 
to state law which did not 

V.  Dowd, 256 F.Supp. 220, 
V.  Brownell, 255 F.Supp.
Federal Civil Rights Act-- 

See, Annot., 88 A.L.R.2d 
ier V.  Cherry, supra at

* * * [I]t defies history to conclude that 
Congress purposely meant to assure to the 
living freedom from such unconstitutional 
deprivations, but that, with like precision, 
it meant to withdraw the protection of civil 
rights statutes against the peril of death.

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The court went on to hold, however, that the defense of 
good faith was available to the defendants as they had acted4in reliance on Missouri statutes which permit a law enforce­
ment official to use deadly force in apprehending a person 
who has committed a felony. The court reasoned that the 
defense of good faith was available even if the statute was 
unconstitutional as the defendants had acted on the reasonable 
belief that it was constitutional. It concluded that no 
justiciable issue was present which permitted declaratory 
relief.

The plaintiff then moved for a nev/ trial and entry of a 
new judgment. The trial court modified its position with 
respect to the plaintiff's standing in its order denying 
that motion. It stated:

Plaintiffs * * * claim for the wrongful 
death of Michael C. Mattis is derivative. 
None of their own civil rights are alleged

^V.A.M.S. §559.040. Justifiable Homicide

Homicide shall be deemed justifiable 
when committed by any person in either of 
the following cases:

(3) When necessarily committed in 
attempting by lawful ways and means to 
apprehend any person for any felony 
committed, or in lawfully suppressing any 
riot or insurrection, or in lawfully keep­
ing or preserving the peace.
V.A.M.S. §544.190, 
Making Arrests

Rights of Officer in

If, after notice of the intention to 
arrest the defendant, he either flee or 
forcibly resist, the officer may use all 
necessary means to effect the arrest.

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to have been violated.. "While a party may 
vindicate his own constitutional rights, he 
may not seek vindication for rights of 
others."

The trial court also advanced an alternative reason for 
denying relief:

* * * Plaintiffs seek declaratory relief and 
not injunctive relief. Only a three-judge 
court could enjoin the enforcement of a state 
law. 28 U.S.C. §2281. It seems to this 
court particularly inappropriate to be asked 
to make a declaration that a statute is 
unconstitutional, v;ithout the power to enforce 
that holding and without that holding having 
any binding effect upon any other court. 
Plaintiffs presumably could have asked for 
injunctive relief and sought a three-judge 
court for that purpose, but they did not 
elect to do so. "In light of this fundamental 
conception of the Framers as to the proper 
place of the federal courts in the govern­
mental process of passing and enforcing laws, 
it can seldom be appropriate for these courts 
to exercise any such power of prior approval 
or veto over the legislative process." Younger 
V.  Harris, [401 U.S. 37] at 53 [1970],

We agree with the trial court's initial conclusions that 
the plaintiff had standing, and that the defenses of good 
faith and probable cause were available to the officers 
insofar as the action for damages was concerned. We cannot 
agree, however, that good faith is a defense to the action 
insofar as declaratory relief is concerned. Nor can we 
agree with declaratory relief is otherwise inappropriate.

^We express no opinion as to the constitutionality of 
these statutes but note only that the claim' is not frivolous. 
Many question the use of deadly force when neither actual or 
threatened deadly force has been used in the commission of 
the crime nor serious bodily harm has been threatened or 
resulted. PROSSER, LAW OF TORTS §26 (4th ed. 1971).

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The plaintiff's right to declaratory relief is not 
dependent upon a showing that he is entitled to injunctive 
or monetary relief.

* * * Where there is * * * a concrete case 
admitting of an immediate and definite 
determination of the legal rights of the 
parties in an adversary proceeding upon the 
facts alleged, the judicial function mav be 
appropriately exercised although the 
adjudication of the rights of the litigants 
may not require the av;ard of process or the 
payment of damages. * * * And as it is not 
essential to the exercise of the judicial 
power that an injunction be sought, alle­
gations that irreparable injury is threatened 
are not required. [Citations omitted.]

Aetna Life Ins. Co. v. Haworth^ 300 U.S. 227, 241 (1937).

Declaratory and injunctive relief, while similar in 
some respects, are distinct remedies. One testing the 
constitutionality of a state statute in federal court may 
ask for declaratory relief only. He need not ask for 
injunctive relief; and if he does not do so, a single judge 
can hear the case and give declaratory relief is appro­
priate.

In Powell V.  McCormick, 395 U.S. 486, 517-518 (1969), the 
Supreme Court stated:

We need express no opinion about the 
appropriateness of coercive relief 
[mandamus or injunction] in this case, for 
petitioners sought a declaratory judgment, 
a form of relief the District Court could 
have issued. The Declaratory Judgment Act, 
28 U.S.C. §2201, provides that a district 
court may "declare the rights . . .  of any 
interested party . . . whether or not 
further relief is or could be sought."
The availability of declaratory relief

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depends on whether there is a live dispute 
between the parties * * * and a request for 
declaratory relief may be considered 
independently of whether other forms of relief 
are appropriate. * * * [Citations omitted.]

See also. Super Tire Engineering Co. v. McCorkle, 42 U.S.L.W. 
4507 (U.S. April 16, 1974); Mitchell v. Donovan, 398 U.S.
427 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); 
United Fublic Workers v. Mitchell, 330 U.S. 75 (1947).

Moreover, the defense of good faith is only what its 
name implies. It is a defense which shields a public 
official from being required to respond in damages.^ It is 
intended to avoid penalizing an official who acts in the 
good faith belief that he is acting in accordance with a 
valid law. The defense cannot be permitted to serve as a 
reason for denying equitable or declaratory relief in 
appropriate situations.

The defense of good faith should be read against the 
background of tort liability. Clearly the defense is 
intended to apply only to the damage action. See, Pierson 
V.  Ray, 386 U.S. 547 (1967); Monroe v. Pape, 365 U.S. 167 
(1961); Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), 
cert, denied, 401 U.S. 947 (1971).

In Strickland v. Inlow, 485 F.2d 186, 189 (8th Cir. 
1973), cert, denied, 42 U.S.L.W. 3584 (U.S. April 15, 1974) 
(No. 73-1285), we said; "Good faith is a defense in damage 
action, but not in actions for equitable relief."

In Eslinger v. Thomas, 476 F.2d 225 (4th 
the plaintiff brought an action for damages a 
relief (declaratory relief and an injunction) 
against the Lieutenant Governor of South Caro 
President Pro Tempore and all state senators 
of plaintiff's civil rights. The plaintiff a 
a senate resolution permitting females to be 
clerical assistants and committee attendants, 
pages, was unconstitutional. The Court held

Cir. 1973), 
nd equitable 
under §1983 
lina, the 
for a violation 
lleged that 
employed as 
but not as 
that the

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We also find unpersuasive the trial court's other 
alternative ground for dismissing the case. A declaratory 
judgment would not, as the trial court suggests, be totally 
ineffectual. Such a judgment has " * * * the force and 
effect of a final judgment or decree and is [reviewable 
as such] * * 28 U.S.C. §2201. The judgment is res
judicata and the doctrine of collaterial estoppel is 
applicable. WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE 
CIVIL §2771. The judgment is precedential as to the matters 
declared by it. Annot., 10 A.L.R.2d 782, 785 (1950). Most 
importantly, if the statute is declared unconstitutional, 
a defense based on a good faith belief of the statute's 
validity would no longer be available.

Moreover, no considerations of comity, federalism or 
abstention justifying the court in refusing to proceed are 
present here. Compare^ Samuels v. Macketl, 401 U.S. 66 
(1971).

The critical issue then is whether the plaintiff had 
standing. We believe the trial court's initial views on 
this matter were the correct ones. There are two aspects 
to this question: (1) the party seeking relief must show
that he is sufficiently affected by the action he is

defendants were immune from liability but remanded the case 
for the purpose of granting declaratory and injunctive 
relief.

^In Bvisaoe v. Kusper, 435 F.2d 1046 (7th Cir. 1971) , 
the plaintiff brought an action under the Civil Rights Act 
(§1983) for violation of plaintiff's constitutional rights. 
The Court held that the plaintiff was entitled to declaratory 
relief but that'the defendants had acted out of good faith 
and upon reasonable grounds; consequently, citing Pierson 
V.  Rayj supra^ the defendants were not liable for damages.

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challenging to justify consideration by the court of the 
validity of the' action; and (2) the action violates the 
rights of the particular party who is attacking it and not 
of some third party. SEDLER, Standing to Assert Consti­
tutional Jus Tertii in the Supreme Courts 71 Yale L. J. 599, 
599-600 (1962).

We believe the plaintiff showed that he would be 
sufficiently affected by the killing of his son to justify 
the courts considering the matter. The Missouri Wrongful 
Death Act (V.A.M.S. §537.080) creates a vested right in the 
plaintiff to bring suit for the death of his minor son. 
Spencer v. Bradley^ 351 S.W.2d 202, 207 (Mo. 1961) . The 
right of action is not derivative. The Missouri Supreme 
Court has said;

It is now well settled that the causes 
of action provided by these statutes are 
not either derivative, transmissible, or 
survival causes of action, but are new 
causes of action spri.nging into being and 
accruing on and by reason of the death of 
the party injured in favor of the persons 
named in the statute.

Jordan v. St. Joseph Ry. Light, Heat & Power Co., 73 S.W.2d 
205, 211 (Mo. 1934).

Further, the Missouri Supreme Court has declared;

* * * [T]he true ground of recovery by a 
parent in such cases arises from the 
reciprocal duty of the child to render to 
its parent such services or earnings as 
the latter may reasonably expect of it.
★  ★  ★

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We hold that the right of a parent to 
a minor's services is in the nature of a 
personal right arising out of the family- 
relationship, and is not a property right 
arising out of a psuedo contractual 
relationship.

Mennemeyer v. Harty 221 S.W.2d 960, 962 (Mo. 1949).

Thus, it is clear that Dr. Mattis is an injured party under 
§1983, that he is suing in his own right for injuries person­
ally sustained, and that he is sufficiently affected by 
action challenged to fulfill the first aspect of standing.

We turn to the more difficult question of whether the 
killing of the plaintiff's son invaded the plaintiff's 
constitutionally protected rights under the due process 
clause of the Fourteenth Amendment to the Constitution of 
the United States.

To determine whether a right is 
protected by the due process clause, a 
court
must look to the "traditions and (collec­
tive) conscience of our people" to determine 
whether a principle is "so rooted (there)
. . . as to be ranked as fundamental."
Snyder v. Com. of Massachusetts, 291 U.S. 97, 
105 (54 S.Ct. 330, 332, 78 L.Ed. 674). The 
inquiry is whether a right involved "is of 
such a character that it cannot be denied 
without violating those 'fundamental 
principles of liberty and justice which lie 
at the base of all our civil and political 
institutions' . . .." Powell v. State of
Alabcima, 287 U.S. 45, 67 (53 S.Ct. 55, 63,
77 L.Ed. 158)
Griswold v. State of Connecticut, supra,
381 U.S. at 493, 85 S.Ct. at 1686 (concur­
ring opinion, Goldberg, J.) .' •

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United States v. State of Texas, 252 F.Supp. 234, 250 
(D.C. Tex.), affd, 384 U.S. 155 (1966).

The Supreme Court has on numerous occasions observed 
that the framers of che Constitution intended to protect 
rights other than those specified.

This Court, in a series of decisions, 
has held that the Fourteenth Amendment 
absorbs and applies to the States those 
specifics of the first eight amendments 
which express fundamental personal rights. 
The language and history of the Ninth 
Amendment reveal that the Framers of the 
Constitution believed that there were addi­
tional fundamental rights, protected from 
governmental infringement, which exist 
alongside those fundamental rights 
specifically mentioned in the first eight 
constitutional amendments.

Griswold V.  Connecticut, 381 U.S. 479, 488 (1965) (Goldberg, 
concurring).

In Meyer v. Nebraska, 262 U.S. 390, 399 (1923), the Court 
stated;

VJhile this court has not attempted to 
define v/ith exactness the liberty thus 
guaranteed [Fourteenth Amendment guarantee 
against deprivation of life, liberty, or 
property without due process of law], the 
term has received much consideration, and 
some of the included things have been 
definitely stated. Without doubt, it 
denotes not merely freedom from bodily 
restraint, but also the right of the 
individual to contract, to engage in any 
of the common occupations of life, to acquire 
a home and bring up children, to worship God 
according to the dictates of his own 
conscience, and, generally, to enjoy those 
privileges long recognized at common law as

\
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essential to the orderly pursuit of 
happiness by free men. * * * The established 
doctrine is that this liberty may not be 
interfered with, under the guise of 
protecting the public interest, by legis­
lative action which is arbitrary or without 
reasonable relation to some purpose within 
the competency of the state to effect.
Determination by the legislature of what 
constitutes proper exercise of police power 
is not final or conclusive, but is subject 
to supervision by the courts. * * * (Cita­
tions omitted and emphasis added.)

The familial relationship between parent and child is 
fundamental to our civilization. The family is the 
foundation of society and hence the state. The traditions 
and common heritage of our people have alv;ays stressed the 
importance of the family bonds.

Lo children are an heritage of 
the Lord: and the fruit of the womb is 
his reward.

As arrows are in the hand of a 
mighty man; so are the children of the 
youth.

Happy is the man that has his 
quiver full of them; they shall not be 
ashamed, but they shall speak with the 
enemies in the gate.

Psalm 27:3-5. We do not believe that the Constitution 
excludes this fundamental relationship from its protection

The entire fabric of the Constitution 
and the purposes that clearly underlie its 
specific guarantees demonstrate that the 
rights to marital privacy and to marry and 
rdiss Q are of similar order and
magnitude as the fundamental rights 
specifically protected. v v :

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* * * The fact that no particular provi­
sion of the Constitution explicitly forbids 
the State from disrupting the traditional 
relation of the family— a relation as old 
and as fundamental as our entire civili- 
zation--surely does not show that the 
Government v/as meant to have the power to 
do so. Rather, as the Ninth Amendment 
expressly recognizes, there are fundamental 
personal rights such as this one, which are 
protected from abridgment by the Government 
though not specifically mentioned in the 
Constitution. (Emphasis supplied.)

Griswold v. Connecticut, supra at 495-496.

The practical effect of Officer Marel<.'s act was to deny 
the plaintiff the fundamental right to raise his son. The 
plaintiff has a right to have the validity of the act 
dstermined. It is insufficient to say that since you 
cannot recover damages, you cannot challenge the statutes 
which occasioned the loss. Such a result would leave the 
plaintiff without a remedy. Chief Justice Marshall in 
Marbury v. Madison, 5 U.S. (1 Cranch) 37, 10^-103 (xuC3/, 
noted that such a result was untenable.

* * * If he has a right, and that right has 
been violated, do the laws of this country 
afford him a remedy?

The very essence of civil liberty 
certainly consists in the right of every 
individual to claim the protection of the 
laws, whenever he receives an injury. * * *

" * * * [E]very right, when withheld, must 
have a remedy, and every injury its proper 
redress."

The government of the United States has 
been emphatically termed a government of laws.

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and not of men. It will certainly cease to 
deserve this high appelation, if the laws 
furnish no remedy for the violation of a 
vested legal right.

We believe that "parenthood is a substantial interest of 
surpassing value and protected from deprivation without due9process of law" — a fundamental legal right. The plaintiff 
alleges that this fundamental right has been invaded. The 
only way to determine this issue is to examine the 
constitutionality of the statutes and a declaratory judgment 
action is an appropriate method to do this.

Finally, we turn to two questions raised by the dissent: 
whether the defendants have a sufficient stake in the outcome 
of the declaratory judgment action to meet the case or 
controversy requirement of Article III, and whether it is 
unfair, in a practical sense, to burden them with the 
defense of this action.

VThile it is clear that the judicial power extends only 
to "actual controversies arising between adverse litigants," 
Muskrat v. United States, 219 U.S. 346, 361 (1911), we do 
not agree that defendants lack sufficient adverse interest. 
The defendants have a stake in the outcome because the 
declaratory relief sought would define their rights and 
powers as police officers. They have an interest in assuring 
that the law governing their official conduct is clear so 
that they may perform their duties in a manner consistent 
with the Constitution. This interest is not a financial one, 
but it is an adverse one, nevertheless. The defendants

^White V. Minter, 330 F.Supp. 1195, 1197 
see, Armstrong v. Manzo, 380 U.S. 545 (1965)•

(D. Mass. 1971);

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relied on state statutes in their use of deadly force against 
plaintiff's son; clearly, they perceive that those statutes 
govern their conduct and confer upon them a special power not 
held by ordinary citizens. The result of a declaratory 
judgment in favor of the plaintiff v;ould be a curtailment of 
the power which defendants assert, and a removal of the 
defense of good faith in future damage actions.

For these reasons, the defendants do have a "greater 
legal interest in the question presented by plaintiff than 
* * * other citizens of Missouri.", This is not to say that 
police officers can be required to litigate every declaratory 
judgment suit challenging a state criminal statute. Rather, 
they may be required on occasion to bear the much narrower 

. burden of litigating the constitutionality of state criminal 
statutes which set forth their special rights and powers as 
governmental officers, which they assert shield them from 
damage actions, and upon which they rely in carrying out their 
official duties. This suit is no different, from the stand­
point of adverseness, than an action for declaratory relief 
against one or more county voting registrars who excJude 
certain voters from the ballot in reliance on an allegedly 
unconstitutional state statute providing for a poll tax, 
literacy test, or residency requirement. S.ee, Evans v. 
Cornman^ 398 U.S. 419 (1970); Harman v. Forssenius^ 380 
U.S. 528 (1965); Lane v. Wilson^ 307 U.S. 268 (1939). Cf., 
Cine-Com Theatres Eastern States^ Inc. v. Lordi, 351 F.
Supp. 42 (D. N.J. 1972) (state anti-obscenity law declared 
unconstitutional in action against county prosecutor).
Those who would use a statute as a chield must be prepared 
to defend the constitutional validity of that shield.

■ ■ Once it- is seen that defendants Marek and Schnarr are 
proper parties, and that a case or controversy does indeed

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exist, the practical question of whether or not it is unfair 
to naine them as defendants becomes irrelevant. That issue 
has long since been resolved by Ex Parte Young, 209 U.S. 123 
(1908) , which held that a state official who attempts to 
assert powers conveyed by an unconstitutional enactment "is 
stripped of his official or representative character and is 
subjected in his person to the consequences of his individual 
conduct." Id. at 159-160. In numerous cases since that 
decision, the federal courts have permitted both equitable 
and legal actions against government officials without 
pausing to inquire whether or not it is fair that the named 
defendant bear the burden of the defense. See, e.g.. Doe v. 
McMillan, 412 U.S. 306 (1973)(superintendent of documents and 
public printer); Powell v. McCormick, 395 U.S. 486 (1969) 
(congressional employees); Lane v. Wilson, supra. We add, 
hov;ever, that public agencies have the right to assist in 
the defense of this type of action should they choose to do 
so.

Since the state has power to intervene under Rule 24, it 
can, if it so desires, move both to assure that its voice 
is heard and to assist defendant police officers. A copy 
of the complaint was mailed to the state Attorney General at 
the outset of this proceeding and, on remand, it will, of 
course, be appropriate to give the state an opportunity to 
be heard on the issue of declaratory relief.

Reversed and remanded with directions to the trial court 
to determine whether the plaintiff is entitled to have the 
statutes in question declared unconstitutional. On such 
remand, it will, of course, be appropriate to give the state 
an opportunity to be heard on the issue.

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GIBSON, Circuit Judge, dissenting.

I respectfully dissent. The majority's decision trans­
gresses a fundamental Constitutional limitation on judicial 
power. In short, there exists no "case or controversy" 
regarding plaintiff's request for declaratory judgment that 
would permit invocation of the judicial process. My dis­
agreement with the majority lies not v;ith the standing of 
the plaintiff, but with the majority's failure to discern 
that the required adversariness of legal interests to render 
a claim justiciable is absent in this case. This case is not 
cast in an adversary mold. The defendants have no legal 
interest in upholding the constitutionality of the statutes 
under attack nor should they have an obligation to do so.

I agree with the majority that a father should have 
standing to seek redress for the alleged unconstitutional 
deprivation of the life of his son. And even though I 
personally feel that the use of the declaratory judgment 
statute to challenge the constitutionality of a state 
statute is a "back-door" approach to circumventing the 
requirement of a three-judge district court set out in 
28 U.S.C. §2281, the decided cases support the majority's 
holding that a three-judge court is not required in this 
case. However, I cannot agree that the combination of a 
plaintiff with standing and a properly constituted court 
suffices to establish a "case or controversy" in the 
Constitutional or statutory^ sense. If a plaintiff does

^28 U.S.C. §2201 provides:
In a case of actual controversy within its 

jurisdiction, except with respect to Federal 
taxes, any court of the United States, upon the

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not sue a proper party, no amount of standing and no number 
of judges can create a justiciable controversy.

The plaintiff asks that we determine that the existence 
of an actual controversy between him and defendants over 
their liability for damages under 42 U.S.C. §1983 may some­
how be imputed to his claim for declaratory relief under 
28 U.S.C. §2201. This we cannot, or more accurately since 
the majority has done so, should not do. The issuance of 
a declaratory judgment, the same as a resolution of a claim 
for damages, requires an actual controversy between parties 
having adverse legal interests. Maryland Casualty Co. v.

Coal & Oil Co., 312 U.S. 270 (1941); Paper Carriers 
Union No. 450 v. Pulitizer Publishing Co., 309 F.2d 716 
(8th Cir. 1962); Johnson v. Fidelity & Casualty Co.,
238 F.2d 322 (8th Cir. 1956). As stated by the Supreme 
Court in Maryland Casualty Co., supra at 273:

The difference between an abstract question 
and a "controversy" contemplated by the Declara­
tory Judgment Act is necessarily one of degree, 
and it would be difficult if it would be possible, 
to fashion a precise test for determining in every 
case whether there is such a controversy. Basically, 
the question in each case is whether the facts 
alleged, under all the circumstances, show that 
there is a substantial controversy between parties 
having adverse legal interests, of sufficient 
immediacy and reality to warrant the issuance of a declaratory judgment.

1 continued
filing of an appropriate pleading, may declare 
the rights and other legal relations of any 
interested party seeking such declaration, 
whether or not further relief is or could be 
sought. Any such declaration shall have the 
force and effect of a final judgment or decree 
and shall be reviewable as such.

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See also Joint'Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123, 149-57 (1951) (Mr. Justice Frankfurter con­
curring); 6A Moore's Federal Practice 1157.11-57,15 (2d ed. 
1974) .

The adverse legal interest required must relate to the
claim for declaratory judgment. An adverse legal interest
relative to a damage issue will not suffice, without more,
to establish the adverse legal interest required to determine
a constitutional question. The circumstances of this case
reveal that the defendant police officers have no legal
interests adverse to that of the plaintiff concerning the2constitutionality of the challenged statutes. The real 
concern of the defendants in this lawsuit is their possible 
liability for damages. The damage issue was resolved in 
the District Court and no appeal was taken on that issue.

Here a decision as to the constitutionality of these 
statutes does not affect the decision in defendants' favor

^This is succinctly indicated in defendants' brief;
This basic complaint of Dr. Mattis in this 

appeal is directed not at the [liability of 
defendants], but at the District Court's refusal 
to decide the constitutional question. This 
contention creates a problem' for appellees be­
cause their real concern is the fact that money 
damages had been sought against them and their 
status in that regard. Marek and Schnarr, as 
citizens and police officers, * * * are naturally 
interested in the broader question raised by 
appellants, but such interest is necessarily 
limited by the economic facts of life existing 
in an attorney-client•relationship where funds 
of a public interest group are not available.

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on the damage question as the defendants in good faith 
relied on the validity and lawfulness of the statutes.
Once absolved of liability for damages, the defendants 
have no greater legal interest in the question presented 
by plaintiff than any other citizens of Missouri nor 
should they be burdened with the task and expense of 
litigating the constitutionality of state statutes.

The State of Missouri or a proper official thereof 
can be the only proper party defendant on this claim for 
declaratory relief. It is inappropriate to note the 
State should be given an opportunity to be heard on the 
issue v;hen in actuality the State should be the defendant.
Of course, in making the State a defendant, the statutory 
requirements of 28 U.S.C. §§2281 and 2284 would have to 
be respected, and a three-judge district court convened 
to pass on the constitutional issue. The plaintiff 
apparently does not v;ant to bring in the State as a party, 
in blatant disregard of the spirit, purpose, and intent of 
§2281 to submit the constitutionality of state statutes to 
a three-judge court, rather than a single judge, as a matter 
of public policy. The courts, however, have acquiesced in 
this deception, utilizing questionable rationale to dis-

It cannot seriously be contended that defendants' 
status as police officers places them in a position where 
they can be required to litigate declaratory suits challeng­
ing state criminal statutes.

It is interesting to note that the plaintiff is repre­
sented by the American Civil Liberties Union in his endeavor 
to have the state statutes declared unconstitutional, while 
the defendant police officers are on their own except for 
whatever insurance might be available to them to cover their 
personal liability. This is not meant as a reflection on 
the American Civil Liberties Union as it has a right to 
pursue issues in a judicial forum, but this in turn requires 
an adversary defendant capable of and interested in contest­
ing the issue.

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tinguish b .‘tween an injunction based on a declaration of 
unconstitUT-ionality of a state statute and a declaratory 
judgment declaring the same state statute unconstitutional. 
This distinction is based on procedure and not substance. 
The effect on the statute is identical and the crucial 
issue of constitutionality resolved in either case.

It is interesting to note that the majority, to support 
its conclusion of sufficient adversariness of interest to 
sustain jurisdiction, cites Evans v. Cornman, 398 U.S. 419 
(1970); Harman v. Forssenius, 380 U.S. 528 (1965); and 
Cine-Corn Theatres Eastern States, Inc, v. Lordi, 341 F.Supp. 
42 (D.N.J. 1972). All these cases were brought before three- 
judge district courts convened pursuant to §2281, precisely 
the procedure which I have suggested as proper in this 
dissent. Lane v. Wilson, 307 U.S. 268 (1939), the fourth 
case cited by the majority was an action for damages, not 
declaratory relief, and serves as no precedent for the 
majority's position. The majority states, "Those who would 
use a statute as a shield must be prepared to defend the 
constitutional validity of that shield." Ante, p. 15.
This may be true, but such a finely turned phrase cannot 
obscure the fact that the logic contained therein is 
inapplicable to the facts of this case. Here, defendants 
did not rely upon the constitutionality of the statutes in 
question to shield them from damages; instead, in accord 
with Pierson v. Ray, 386 U.S. 547 (1967), it was their good 
faith belief in the statutes' constitutionality that served 
as their shield.

In the context of the instant case the issue is further 
exacerbated by utilizing a non-litigious procedural method 
which amounts virtually to an ex parte proceeding. The ex 
parte aspects of this case could not occur under a §2281

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proceeding as a state official must of necessity be made a 
party defendant and notice of the hearing given to the 
governor and attorney general of the state under §2284(2).
In making its suggestion, the majority implicitly recognizes 
that the case for constitutionality will likely receive an 
inadequate presentation on behalf of the present defendants. 
Nor could a court realistically expect more from an unwilling 
party with no adverse legal interest to be affected by the 
decision in this case. It is the general public which has a 
legal interest in upholding the constitutionality of the 
statute, and it is that public interest which is assured 
'Protection in a §2281 proceeding. Here that interest will 
receive no protection, not perhaps because of philosophical 
disinterest but financial disinterest, a compelling considera­
tion to privately financed litigants.

I would affirm the judgment of dismissal, without 
prejudice to the institution of a proper action challenging 
the Missouri statutes in question.

A true copy,

Attest:

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

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