A three-judge panel of the United States Court of Appeals for the Ninth Circuit upheld California’s controversial gun-store monitoring law by a 2-1 margin.
The case, Richards v. Newsom, was brought by brick-and-mortar FFLs, two home-based FFLs, gun-rights groups (GOA, GOC, CRPA, and SAF), and individual patrons of the shops. It challenges California Penal Code § 26806 (enacted by SB 1384 and effective Jan. 1, 2024), which requires every California FFL to operate a 24/7 digital video system that also records audio inside the premises. Cameras must cover entries and exits, display areas, and points of sale; clearly identify people; run at least 15 frames per second; and store footage for one year.
Dealers must also post a conspicuous warning:
THESE PREMISES ARE UNDER VIDEO AND AUDIO SURVEILLANCE. YOUR IMAGE AND CONVERSATIONS MAY BE RECORDED.
The legislature’s stated aims were preventing gun theft from dealers and straw purchasing, although some in the gun community believe the real goal was to chill Second Amendment rights.
At the district-court level, the court ruled that the law was constitutional, leading the plaintiffs to appeal to the Ninth Circuit. The case was assigned to a three-judge panel consisting of Lucy H. Koh and Ana de Alba (both appointed by President Biden) and Trump appointee Kenneth K. Lee. The plaintiffs faced an uphill battle given the panel’s makeup, but many held out hope because the case appeared to present a clear instance of constitutional overreach.
The plaintiffs’ first claim was that the law violated the Fourth Amendment by constituting an illegal search and seizure. The panel rejected the claim, ruling that the dealers’ recordings are not themselves a government search. There is no physical intrusion by the state (citing Jones) and no government acquisition of data (citing Carpenter and Chatrie). Dealers are not transformed into state actors merely by being required to keep cameras.
The two Biden-appointed judges rejected Judge Lee’s inspection theory on three grounds: § 26806 does not authorize inspections (other Penal Code provisions do, and those were not challenged). Even if it did, the statute is facially valid under New York v. Burger because it limits who may inspect, what may be inspected, and why.
The two home-based FFLs lack standing to challenge hypothetical future midnight or Christmas-morning searches that have not occurred and are not alleged to be imminent.
The plaintiffs also claimed that the law violated the Fifth Amendment’s Takings Clause. The court rejected this claim as well. The majority held that the requirements were not a physical taking: dealers own and install the equipment, and the government does not occupy the premises (citing Loretto, Cedar, and Point). It is not a regulatory taking under Penn Central: dealers in a heavily regulated industry have reduced investment-backed expectations; alleged compliance costs of about $17,000 without a before-and-after value comparison do not suffice; and the character of the action is a public-safety regulation, not a physical invasion.
The court also rejected the plaintiffs’ First Amendment claim. The judges held that overbreadth fails because the statute does not punish or regulate speech. The anonymity claim fails because no one must identify themselves, even though the cameras must be positioned to identify customers easily. The association claim fails because membership is not compulsory. The chilling claim fails under Laird v. Tatum and Clapper: subjective fear that the state might someday misuse footage is not enough; a person of ordinary firmness would not reasonably expect adverse government action given the statute’s access limits.
The majority also declined to adopt the dissent’s “right to receive and exchange information” theory because the plaintiffs did not raise it and the cited cases (Lamont, Martin, and Pacific Coast Horseshoeing) involved actual prohibitions or affirmative obstacles to receiving speech, not a recording mandate in a public business.
Lee, in his dissent, would hold that continuous audio recording violates the First Amendment right to receive and exchange political information.
Gun shops, he writes, are hubs of Second Amendment discussion; a government-mandated year-long audio archive plus a warning sign will inhibit that speech. Video may help identify thieves; audio, in his view, has no serious law-enforcement justification.
The one dissenting judge would also hold that the inspection scheme violates the Fourth Amendment as applied to home-based FFLs: there are no time or place limits, so agents could theoretically enter a home at any hour to “check the system,” analogous to the home-daycare inspections struck down in Rush v. Obledo. He treats § 26806(b)(1)’s “shall allow access” language as itself authorizing those inspections.
The panel leaves California’s 24/7 video-and-audio FFL surveillance requirement in place.
The published split is over audio recording’s speech effects and warrantless inspection of home-based dealers, not over the core video-security rationale. Plaintiffs can still challenge a specific future search if one occurs.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @right2bear, or at www.crumpy.com.
