Knife Rights, Inc. et al v. Garland et al

Filing 38

MEMORANDUM OPINION & ORDER: The Court GRANTS Defendants' 24 Motion to Dismiss under Rule 12(b)(1) due to lack of standing, and the Court DENIES Plaintiffs request for leave to amend their complaint. Accordingly, the Court DISMISSES this action without prejudice. All other pending motions are otherwise DENIED. Separate final judgment shall issue. (Ordered by Judge Reed C. O'Connor on 6/3/2024) (mmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KNIFE RIGHTS, INC.; RUSSELL
ARNOLD; JEFFREY FOLLODER; RGA
AUCTION SERVICES LLC d.b.a.
FIREARM SOLUTIONS; AND MOD
SPECIALTIES,
Plaintiffs,
v.
MERRICK B. GARLAND, Attorney
General of the United States; UNITED
STATES DEPARTMENT OF
JUSTICE,
Defendants.

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Civil Action No. 4:23-cv-00547-O

MEMORANDUM OPINION & ORDER
Before the Court are Defendants’ Motion to Dismiss for Failure to State a Claim and for
Lack of Subject Matter Jurisdiction, Brief in Support, and Appendix (ECF Nos. 24, 26, 27), filed
November 17, 2023; Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (ECF No. 28), filed
December 15, 2024; and Defendants’ Reply in Support of the Motion (ECF No. 34), filed January
26, 2024. For the reasons set forth herein, the Court GRANTS the Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(1).
I.

BACKGROUND1
On June 01, 2023, Plaintiffs Knife Rights Inc., Russell Arnold, Jeffery Folloder, RGA

Auction Services LLC, and MOD Specialties2 brought this lawsuit against Merrick Garland,

Unless otherwise noted, the facts recited herein are drawn from Plaintiffs’ Complaint. See Pls.’ Compl., ECF No. 1.
Plaintiffs Knife Rights Inc. will be referred to as “Knife Rights,” Russell Arnold and Jeffery Folloder will be
referred to as the “Individual Plaintiffs,” and RGA Auction Services LLC and MOD Specialties will be referred to as
the “Retail Plaintiffs.” When referring to all Plaintiffs, the Court will use “Plaintiffs.”
1
2

1

Attorney General of the United States, and the United States Department of Justice ("Defendants”)
in federal district court, alleging a single claim of deprivation of civil rights, specifically the right
to keep and bear arms.
Plaintiffs challenge the constitutionality of the Federal Switchblade Act (the “Act”) as
inconsistent with the Second Amendment to the United States Constitution. Plaintiffs specifically
assert that the Federal Switchblade Act enacted in 1958, prohibiting the introduction, manufacture
for introduction, transportation, or distribution into interstate commerce of switchblade knives,
violates the Second Amendment because switchblades are bearable arms within the meaning of
the Second Amendment and, therefore are protected. Plaintiffs ask the Court for a preliminary and
permanent injunction restraining the Government from enforcing the Act and for a declaratory
judgment that the relevant provisions of the Act and Defendants’ enforcement of the Act violates
the right to keep and bear arms protected under the Second Amendment to the United States
Constitution.
Knife Rights is a section 501(c)(4) member advocacy organization incorporated under the
laws of Arizona with a primary place of business in Gilbert, Arizona. Knife Rights serves its
members, supporters, and the public through efforts to defend and advance the right to keep and
bear bladed arms. Knife Rights brought this action on behalf of its members and the named
Plaintiffs. Knife Rights members include peaceable, law-abiding individuals in Texas who wish to
acquire and possess automatically opening knives.
Individual Plaintiffs in this case are Jeffery Folloder and Russell Arnold, both are adult
citizens of the United States and residents of the State of Texas. Individual Plaintiffs are peaceable,
nonviolent individuals who are otherwise eligible to keep and bear arms under state and federal
law. Individual Plaintiffs wish and intend to acquire, possess, carry, and offer for sale and distribute

2

through interstate commerce, automatically opening knives for lawful purposes, including selfdefense. Individual Plaintiffs allege that they would acquire, possess, carry, offer for sale, acquire,
and distribute through interstate commerce such a knife but for the Government’s enforcement of
the Act. Both Individual Plaintiffs are members of Knife Rights.
Defendants now move for a full dismissal of Plaintiffs’ Complaint under Federal Rule of
Civil Procedure 12(b)(1)3 and 12(b)(6).4 Following completion of the parties’ briefing, that Motion
is now ripe for the Court’s review.5
II.

LEGAL STANDARD
When a 12(b)(1) motion is brought with other Rule 12 motions to dismiss, the 12(b)(1)

motion must be addressed first. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A
12(b)(1) motion to dismiss for lack of subject matter jurisdiction alleges that the court lacks the
authority to hear the dispute. See FED. R. CIV. P. 12(b)(1). Federal courts are courts of limited
jurisdiction and must have “statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party
invoking the jurisdiction bears the burden of demonstrating that jurisdiction exists. Ramming, 281
F.3d at 161. Courts may dismiss for lack of subject matter jurisdiction on any of three separate
grounds: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Kling v. Hebert, 60 F.4th 281, 284 (5th Cir. 2023) (internal citation and quotation
marks omitted).

Several other motions are currently pending, including Plaintiffs’ Motion for Summary Judgment. Because the
Court is dismissing this action today under Rule 12(b)(1) for lack of standing, the Court finds Plaintiffs’ other
motions are moot.
4
Defs.’ Mot. to Dismiss, ECF No. 26 (citing FED. R. CIV. P. 12(b)(1)).
5
Id.; Pls.’ Opp’n Def’s Mot. Dismiss, ECF No. 28; Def.’s Reply, ECF No. 34.
3

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To challenge subject matter jurisdiction under Rule 12(b)(1), a party can make either a
facial or factual attack. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A 12(b)(1)
motion that challenges standing based on the pleadings is considered a facial attack, and the court
reviews only the sufficiency of the pleading’s allegations, presuming them to be true. Id. If a
defendant makes a factual attack on subject matter jurisdiction by submitting evidence, such as
affidavits and testimony, the plaintiff “has the burden of proving by a preponderance of the
evidence that the trial court does have subject matter jurisdiction.” Kling, 60 F.4th at 284 (internal
citation and quotation marks omitted). In a factual attack, the “court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear the case.” Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir. 1981). Further, in a factual attack, “no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.” Id.
Since the Government has provided evidence in the form of an affidavit attacking the
Individual and Retail Plaintiffs’ standing, that is a factual attack on subject matter jurisdiction.
Therefore, the plaintiff “has the burden of proving by a preponderance of the evidence that the trial
court does have subject matter jurisdiction.” See Kling, 60 F.4th at 284 (internal citation and
quotation marks omitted). However, since the Government has not presented evidence attacking
Knife Rights’ individual standing, that is a facial attack. Therefore, the Court reviews only the
sufficiency of the pleading’s allegations, presuming they are true when evaluating Knife Rights’
individual standing. See Paterson, 644 F.2d at 523.

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III.

ANALYSIS
A. Individual and Retail Plaintiffs’ Standing
The Court Finds that Individual and Retail Plaintiffs fail to meet their burden of proving

subject matter jurisdiction by a preponderance of the evidence. See Kling, 60 F.4th at 284.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by the Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “One element
of the case-or-controversy requirement” commands that a litigant must have standing to invoke
the power of a federal court. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “Standing
is a jurisdictional requirement and not subject to waiver.” Doe v. Tangipahoa Par. Sch. Bd., 494
F.3d 494, 496 n.1 (5th Cir. 2007) (citing Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996)). “Standing
to sue must be proven, not merely asserted, in order to provide a concrete case or controversy and
to confine the courts’ rulings within our proper judicial sphere.” Id. at 496–-97.
As the party invoking federal jurisdiction, Plaintiffs bear the burden of establishing
standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The “Supreme Court has instructed
that a court’s inquiry into standing should be ‘especially rigorous when reaching the merits of [a]
dispute would force it to decide whether an action taken by one of the other two branches of the
Federal Government was unconstitutional.’” Hotze v. Burwell, 784 F.3d 984, 992 (5th Cir. 2015)
(quoting Clapper, 568 U.S. at 408) (internal alteration omitted)). “The irreducible constitutional
minimum of standing contains three elements: (1) The plaintiff must have suffered an injury in
fact (2) there must be a causal connection between the injury and the conduct complained of; and
(3) it must be likely, that the injury will be redressed by a favorable decision.” Morgan v.
Huntington Ingalls, Inc., 879 F.3d 602, 606 (5th Cir. 2018) (citing Lujan, 504 U.S. at 560–61

5

(cleaned up)). In the context of a pre-enforcement challenge to a statute, a “plaintiff has suffered
an injury in fact if he (1) has an ‘intention to engage in a course of conduct arguably affected with
a constitutional interest,’ (2) his intended future conduct is ‘arguably ... proscribed by [the policy
in question],’ and (3) ‘the threat of future enforcement of the [challenged policies] is substantial.’”
Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770, 782 (5th Cir. 2024) (quoting Speech
First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020)). Plaintiffs’ failure to show “any imminent
or even credible threat of prosecution” under a statute is fatal to their standing to challenge it. Id.
The Court Finds that Individual and Retail Plaintiffs fail to meet their burden of proving
subject matter jurisdiction by a preponderance of the evidence. See Kling, 60 F.4th at 284. Plaintiffs
argue6 that they are subject to a substantial threat of future enforcement sufficient to establish
Article III standing.7 The Court disagrees. The Individual Plaintiffs simply declare that they have
a “reasonable fear of arrest and prosecution for violation of the Federal Knife Ban.” 8 The Retail
Plaintiffs assert that they “would sell, and introduce into interstate commerce, automatically
opening knives to its customers but for the Defendants’ enforcement of the laws, policies,
practices, and customs at issue in this case and they reasonable fear of arrest, prosecution, and
other penalties[.]”9 Plaintiffs also assert that “Defendants have been and are actively enforcing the
Federal Knife Ban against the Plaintiffs and similarly situated individuals and retailers. As a result,
Plaintiffs contend they reasonably fear that Defendants will continue to enforce the Federal Knife
Ban against them.”10 The evidence presented by Defendants show there are only records of four
enforcement actions in the county under the Act since 2004 and it has not been enforced since
The Plaintiffs’ Complaint lays out identical facts for both Individual Plaintiffs, so the Court will deal with their
standing arguments together. Likewise, the Complaint lays out identical facts for the Retail Plaintiffs, so the Court
will also deal with those arguments together.
7
Pls.’ Opp’n Def’s Mot. Dismiss 16, ECF No. 28.
8
Pls.’ Compl. ¶¶ 12–13, ECF No. 1.
9
Id. ¶¶ 15–16.
10
Id. ¶ 60.
6

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2010.11 Plaintiffs do not counter this factual assertion. Accordingly, the threat of prosecution under
Section 1242 “is therefore a mere hypothetical dispute lacking the concreteness and imminence
required by Article III.” Nat’l Press Photographers Ass’n, 90 F.4th at 782.
Further, Plaintiffs have, in fact, failed to raise any new significant evidence of a substantial
threat of future enforcement in any of their supplemental declarations.12 There are numerous ways
the Individual or Retail Plaintiffs could have carried their burden to demonstrate a substantial threat
of future enforcement. For example, if Plaintiffs were challenging a newly enacted, non-moribund
statute, the Court could assume a credible threat of future enforcement. Ostrewich v. Tatum, 72
F.4th 94, 102 (5th Cir. 2023). If officers of the law had individually threatened Plaintiffs with future
enforcement, such facts would be sufficient at this stage. Steffel v. Thompson, 415 U.S. 452, 459
(1974). Another way Plaintiffs could have satisfied this requirement is by demonstrating that this
was a newly enacted statute targeting a particular class in which they are a part, and complying
with the statute would require costly measures. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.
383, 392 (1988). It would also be sufficient if Plaintiffs proved that the challenged statute was
recently used to prosecute several individuals, and the Government would not disavow prosecution
of the specific Plaintiffs if they continued the proscribed activity. E.g. Holder v. Humanitarian Law
Project, 561 U.S. 1, 16 (2010). Or, as in Braidwood Management, Inc. v. EEOC Plaintiffs could
point to a recent enforcement action by an administrative agency, which served as a “clear shot
across the bow” against potential violators. 70 F.4th 914, 927 (5th Cir. 2023). It would also suffice
if the Government explicitly threatened a particular Plaintiff with forfeiture, fines, or other
penalties for violating the particular law. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129

See Aff. Mathew Zabkiewicz 2, ECF No. 26-1.
See Suppl. Decl. Jefferey Folloder, ECF No. 28-1; Suppl. Decl. Russell Arnold, ECF No. 28-2; Suppl. Decl. Doug
Ritter, ECF No. 28-3; Decl. Adam Warden, ECF No. 28-4; Decl. Evan Kaufmann, ECF No. 28-5.
11
12

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(2007). However, none of that is the case here. Instead, the Individual Plaintiffs assert that they are
“ready, willing, and able to purchase and sell automatic[ally] opening knives,” and allude to their
desire to sell switchblades at gun shows and conventions across the country.13 All of these claims
fail for the same reason. Plaintiffs simply declare that there is a substantial threat of future
enforcement rather than pleading and proving by a preponderance of the evidence sufficient
individual facts to establish such a substantial threat of future enforcement or facts sufficient for
the Court to infer the same. Therefore, the Court has no choice but to find Individual and Retail
Plaintiffs lack standing.
B. Knife Rights’ Standing
The Court Finds that Knife Rights fails to meet its burden of proving subject matter
jurisdiction either in its own right or through its members.
There are two ways for an organization to demonstrate standing. First, the organization can
assert representational standing on behalf of its members. La. Fair Hous. Action Ctr., Inc. v. Azalea
Garden Props., L.L.C., 82 F.4th 345, 350 (5th Cir. 2023). The associational standing doctrine
permits a traditional membership organization “to invoke the court’s [injunctive or declaratory]
remedial powers on behalf of its members.” Warth v. Seldin, 422 U.S. 490, 515 (1975). To do so,
the organization must satisfy a three-prong Hunt test by showing that “(a) its members would
otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 600 U.S. 181, 199 (2023) (quoting Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). “When a defendant contests an organization’s

13

Suppl. Decl. of Jeffrey Folloder ¶¶ 4, 7, ECF No. 28-1; Suppl. Decl. of Russell Gordon Arnold ¶ 4, ECF No. 28-2.

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standing based on a factual challenge to the standing of a member whose standing to sue in his
own right controls the organization’s standing, the Rule 12(b)(1) motion is also a factual attack,”
and the same standard applies. Patterson v. Rawlings, 287 F. Supp. 3d 632, 643 (N.D. Tex. 2018)
(Fitzwater, J.).
Second, an organization can also have standing in its own right. Louisiana Fair Hous.
Action Ctr., Inc., 82 F.4th at 350. “An organization can establish standing in its own name if it
meets the same standing test that applies to individuals.” Id. at 351 (internal citation and quotations
omitted).14 As previously stated, the “irreducible constitutional minimum of standing contains
three elements: (1) The plaintiff must have suffered an injury in fact (2) there must be a causal
connection between the injury and the conduct complained of; and (3) it must be likely that the
injury will be redressed by a favorable decision.” Morgan, 879 F.3d at 606 (citing Lujan, 504 U.S.
at 560–61 (cleaned up)).
“An organization may establish a cognizable injury by showing that its ability to pursue its
mission is perceptibly impaired because it has diverted significant resources to counteract the
defendant’s conduct.” La. Fair Hous. Action Ctr., Inc., 82 F.4th at 351 (cleaned up). “However,
not every diversion of resources rises to an injury sufficient to confer standing,” or every
organization would presumably have Article III standing. Id. “The organization’s purportedly
injurious counteractions must differ from its routine activities.” Id. Further, “expenses that are
substantively related to future litigation do not suffice.” Id. Again, since the Government has not
presented evidence attacking Knife Rights individual standing, this is a facial attack, and the court
reviews only the sufficiency of the pleading’s allegations, presuming them to be true. See Paterson,
644 F.2d at 523.

14

For what is required for standing for individuals, see supra Part III.A.

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Plaintiffs argue that “the Organizational Plaintiff Knife Rights, Inc. (Knife Rights) has
standing for itself[.]”15 The Court again disagrees. The Plaintiffs’ Complaint contains no facts that
can be construed as conferring standing to Knife Rights independent of the Individual and Retail
Plaintiffs.16 The Plaintiffs inherently recognized this by relying almost entirely on Mr. Ritter’s
Declaration, filed concurrently with their response, in an attempt to establish independent standing
for Knife Rights.17 Therefore, the Court has no choice but to find Knife Rights also lacks individual
standing.
Further, even if the Court considered Mr. Ritter’s Declaration as part of the pleadings, the
Court would still have found that Knife Rights did not have standing. Plaintiffs argue Knife Rights
has suffered an injury in fact in its own right because it is “expending substantial organizational
time, effort, money, and other resources over a period of several years to challenge and/or repeal
the FSA, Knife Rights has sustained injury, harm, and losses that could be avoided if Defendants
would simply take steps to voluntarily repeal or set aside the FSA.”18 This does not constitute an
adequate injury to confer Article III standing. Plaintiffs acknowledge in their pleading that “Knife
Rights serves its members, supporters, and the public through efforts to defend and advance the
right to keep and bear bladed arms.”19 As Plaintiffs further note, their routine activities include
being “responsible for defeating 10 anti-knife bills in seven states, and . . . obtain[ing] favorable
court decisions throughout the country.”20 The Court can not find a distinction between the injury
claimed by Knife Rights, “expending substantial organizational time, effort, money, and other

Pls.’ Opp’n Def’s Mot. Dismiss 9, ECF No. 28.
See generally Pls.’ Compl., ECF No. 1.
17
Pls.’ Opp’n Def’s Mot. Dismiss 9–10, ECF No. 28.
18
Suppl. Decl. Doug Ritter 4, ECF No. 28-3.
19
Pls.’ Compl. ¶ 11, ECF No. 1.
20
See Suppl. Decl. Doug Ritter 1, ECF No. 28-3.
15
16

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resources . . . to challenge and/or repeal the FSA”21 and its routine activity of challenging antiknife bills. Therefore, the Court finds that Knife Rights has no standing in its own right.
Since the Court has found that Individual and Retail Plaintiffs do not have standing, Knife
Rights fails the first prong of the Hunt test; therefore, Knife Rights does not have associational
standing. See Students for Fair Admissions, Inc., 600 U.S. at 199.
C. Leave to Amend
Because Plaintiffs request leave to amend in response to the Defendants’ motion to dismiss,
the Court addresses whether leave to amend is proper.22 Rule 15(a)(2) of the Federal Rules of Civil
Procedure states that when a party requests leave to amend, “[t]he court should freely give leave
when justice so requires.” FED. R. CIV. P. 15(a)(2). However, the Fifth Circuit has made clear that
“leave to amend is by no means automatic.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994
(5th Cir. 2005) (citing Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994)).
Although the Fifth Circuit has not provided detailed guidance as to what constitutes a
sufficient request for leave to amend, it has held that at least “some specificity is required.” Thomas
v. Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016). Further, “[i]f the plaintiff does not
provide a copy of the amended complaint nor explain how the defects could be cured, a district
court may deny leave.” Scott v. U.S. Bank Nat’l Assoc., 16 F.4th 1204, 1209 (5th Cir. 2021) (citing
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002)). A court should consider
several factors when deciding whether to grant leave to amend, including “undue delay, bad faith
or dilatory move on the part of the movant, repeated failures to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of amendment,
and futility of the amendment.” Jones, 427 F.3d at 994 (citing Dussouy v. Gulf Coast Inv. Corp.,

21
22

See id.
Pls.’ Opp’n Def’s Mot. Dismiss 3, ECF No. 28.

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669 F.2d 594, 598 (5th Cir. 1981)). In this case, futility of amendment is most relevant to the
Court’s decision.
The Court finds that Plaintiffs’ claims against Section 1243 are not properly before the
Court.23 There are no facts in the allegations of the Complaint that suggest that any of the Plaintiffs
sought to possess switchblades on federal or tribal land, as they now contend.24 Plaintiffs merely
describe Section 1243’s territorial restrictions in the Complaint’s introductory section and in one
paragraph of the Statement of Facts.25 However, even if the Court were to grant leave to amend, it
would be futile for the reasons the Court found Plaintiffs lack standing to challenge Section 1242:
the same challenges exist regarding any challenge Plaintiffs would bring to Section 1243 because
it has not been enforced since at least 2004—the farthest back that systematic data is available.26
As a result, Plaintiffs plainly lack standing when they fail to provide evidence that the statutory
provision has ever been enforced against them or regularly enforced against others. Nat’l Press
Photographers Ass’n, 90 F.4th at 782. Accordingly, Plaintiffs’ request for leave to amend is
DENIED.
IV.

CONCLUSION
For the reasons explained, the Court GRANTS Defendants’ Motion to Dismiss under Rule

12(b)(1) due to lack of standing (ECF No. 24), and the Court DENIES Plaintiffs request for leave
to amend their complaint. Accordingly, the Court DISMISSES this action without prejudice. All
other pending motions are otherwise DENIED. Separate final judgment shall issue.
SO ORDERED on this 3rd day of June 2024.

Pls.’ Opp’n Def’s Mot. Dismiss at 21–22, ECF No. 28.
Id. at 4-7; Compl. ¶¶ 6–7, 23, ECF No. 1.
25
Pls.’ Compl. ¶¶ 6–7, 23, ECF No. 1.
26
See Aff. Mathew Zabkiewicz 2, ECF No. 26-1.
23
24

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_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE