(dissenting).
I respectfully dissent. The majority’s decision transgresses 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 disagreement with the majority lies not with 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 *597Constitutional or statutory1 sense. If a plaintiff does 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 somehow 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. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Paper Carriers Union No. 450 v. Pulitzer 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, 312 U.S. at 273, 61 S.Ct. at 512:
The difference between an abstract question and a “controversy” contemplated by the Declaratoi'y 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 advei’se legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
See also Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149-157, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Mr. Justice Frankfurter concurring); 6A Moore’s Federal Practice fl 57.11-57.15 (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 the constitutionality of the challenged statutes.2 The real conceim 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 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 Missouri3 nor *598should 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 when 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 want 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 distinguish between an injunction based on a declaration of unconstitutionality 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, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); and Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D. N.J.1972). All these cases were brought before three-judge district courts com vened pursuant to § 2281, precisely the procedure which I have suggested as proper in this dissent. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (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 at 596. 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, 87 S.Ct. 1213, 18 L.Ed.2d 288 (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 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, *599a compelling consideration 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.
. 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 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.
. This is succinctly indicated in defendants’ brief:
This basic complaint of I)r. Maths 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 because 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.
. 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 challenging state criminal statutes.
*598■ It is interesting to note that the plaintiff is represented 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 contesting the issue.