California Makes Gun Dealers Record You: The Ninth Circuit Says That Isn’t a Search

Apparently, government surveillance becomes a little less concerning when the government makes someone else hold the camera.

No! I didn't bump my head.

The above statement is actually the constitutional question sitting underneath a Ninth Circuit decision-- that gun owners honestly should probably be paying a hell of a lot more attention to.

If you haven't heard already, on August 27, the Ninth Circuit handed down its decision in Richards v. Newsom, upholding the dismissal of First, Fourth, and Fifth Amendment challenges to California Penal Code § 26806.

Little Back Story: California requires firearm dealers to maintain surveillance systems recording specified areas of their businesses 24 hours a day.

Inside, that includes audio. The recordings have to be kept for at least a year.

Check out Kostas Moros, Legal Beagle with Second Amendment Foundation's, breakdown...

And we're not talking about surveillance triggered because someone is suspected of committing a crime. We're talking about people walking into a gun store and engaging in completely lawful activity connected to the exercise of their Second Amendment rights.

Yet, one of the important distinctions in the Ninth Circuit's Fourth Amendment analysis was that the state isn't operating the cameras. They mandate them while PRIVATE BUSINESSES are required to install and operate them.

Sound familiar?

What are Flock cameras and why are they so controversial?

What California Actually Requires

Security cameras in gun stores aren't unusual. California is slightly commie, so it's a "norm" there for businesses, especially gun stores to have security measures in place. People do it all over the nation, right?

That's actually not the issue.

The issue is... THE GOVERNMENT IS REQUIRING THEM.

The STATE of California requires permanently mounted cameras covering areas where firearms are displayed and transactions take place. Entrances and exits have to be recorded clearly enough to identify people coming and going. The system runs continuously, interior areas include audio, AND the recordings have to be preserved for at least a year.

California even requires this warning:

“THESE PREMISES ARE UNDER VIDEO AND AUDIO SURVEILLANCE. YOUR IMAGE AND CONVERSATIONS MAY BE RECORDED.”

So, you walk into a Cali gun store to buy a firearm, pick up some ammunition... want to ask a question, talk about some training, or just conduct whatever other completely lawful activity related to exercising your 2A rights, and California requires that environment to be recorded.

Your face.

Your movements.

Your pew purchases.

Potentially your conversations.

And it isn't limited to traditional gun stores!

The requirement applies to home-based FFLs, too.

HOW FUN!!

Now, Who Is Actually Doing the Surveillance?

Here's where the Flock camera argument should start ringing some bells.

We're already seeing the government increasingly rely on these surveillance networks involving privately owned or operated cameras... Flock is a perfect example of them. The camera doesn't necessarily have to belong to the police for law enforcement to benefit from the information it collects.

Richards takes that issue in another direction.

Californian FFLs aren't making this decision on their own to record. It wasn't a business safety choice.

California REQUIRES the private business to do it.

The plaintiffs argued that the state's role in forcing FFLs to continuously create these recordings should implicate the Fourth Amendment.

The Ninth Circuit majority disagreed.

Since California didn't physically install the cameras and state officials weren't operating them, nor is the government continuously receiving the feed... The court rejected the plaintiffs' argument that the “moment of recording” itself constituted a Fourth Amendment search. In other words, the plaintiffs argued that because the cameras are government-required, the recording itself becomes the “search,” before the government ever obtains or watches the footage. They also argued that forcing FFLs to conduct the surveillance effectively makes them government agents for Fourth Amendment purposes.

The majority also rejected the argument that complying with California's mandate automatically transforms the FFL into a government agent.

This Is About More Than Cameras

The Second Amendment is a constitutional right.

Walking into a gun store doesn't create probable cause.

Buying a firearm doesn't make someone suspicious.

Talking about guns doesn't turn someone into a legitimate target for government monitoring.

Normal, right?

Yet, California has mandated an audiovisual record around exactly that lawful activity. "Hey, Peasant! What are YOU doing in this gun store today? Wha'cha talkin to the clerk about? What are you buying? How many? Do you have proper paperwork for that?"

Now, I will mention that California generally can't go and demand whatever stored recordings it wants... whenever it wants. Obtaining recordings generally requires a search warrant or other court order while the law separately addresses access to the surveillance system during qualifying compliance inspections. (Again... another FLOCK similarity)

The problem is that the government has already required the information TO EXIST. They already created the pathway for it to be needed.

In other words: An archive has been created and preserved because The State of California ordered the dealer (FFL) to record and preserve it.

Gun owners should understand why that matters: We've spent decades fighting government databases, registries, and unnecessary collection of information surrounding firearm ownership because today's promise about how information will be used doesn't bind tomorrow's government. We don't know what "the next" administration will do about guns, 2A rights, or the Constitution in general.

The easiest database to abuse is the one that already exists.

Judge Lee Wasn't Buying It

Judge Kenneth Lee concurred in part (agreed) and dissented in part (disagreed) with the majority decision... and his argument went well beyond simply questioning whether people might feel uncomfortable being recorded. He saw California's mandate as threatening both the First and Fourth Amendments while regulating activity directly connected to the Second.

The reality is this... people don't walk into gun stores and suddenly stop talking about politics. FFLs are where many folks discuss legislation, court decisions, elections, lawsuits, gun-rights organizations, self-defense laws, proposed restrictions, and the politicians responsible for them.

That's First Amendment activity happening alongside Second Amendment activity... and California requires those conversations to be recorded, too.

Lee described the requirement as “never-ending surveillance” and pointed out that gun stores can be hubs of political activity where people discuss their Second Amendment rights. His concern was that forcing those conversations to be recorded and preserved could ‘chill’ protected political speech, meaning people may censor themselves or be less willing to speak freely because they know they're being recorded.

Imagine standing at the gun counter discussing opposition to a California gun-control bill while a government-required microphone records the conversation.

Maybe you're criticizing Newsom... or another anti-gun legislator. There are plenty to choose from in Cali!

Maybe you're discussing joining a lawsuit against California.

MAYBE... you're talking about attending a gun-rights rally. Maybe you're talking about a massive case of jock itch.

THAT conversation can remain stored for at least a year.

Some folks won't care at all, but considering the world we live in... others absolutely will.

And that's the point.

You don't have to arrest someone to shut them up for what they're yapping about. Sometimes reminding them that their conversation is "simply" being recorded is enough, right?

Lee put it much more constitutionally when he warned that “The First Amendment shrivels under the constant surveillance of even a benevolent Big Brother.”

But his concerns didn't stop with speech!!

California also applies this mandate to home-based FFLs, and that's where another constitutional boundary comes into play: SOMEONE'S HOME!

Lee raised concerns about inspections of required surveillance systems when the regulated business is also someone's residence. He argued that the framework didn't adequately limit when inspections could occur or where officials might need to go if surveillance equipment was located elsewhere inside the home. He used intentionally extreme examples, including inspections at 2 a.m. or on Christmas Day, to illustrate the problem he saw.

The majority disagreed and pointed out that § 26806 itself doesn't independently authorize general FFL inspections and found the plaintiffs' concerns about future unconstitutional inspections too speculative for their particular challenge.

So no, if you read Lee's intended exaggeration literally, the Ninth Circuit didn't give California permission to kick in an FFL's door at 2 a.m.

BUT... Lee's underlying concern is legitimate. As he put it, “Californians should not face unannounced and warrantless searches at the whim of the government.”

He described California's surveillance law as “unprecedented in its sweeping and shocking scope,” arguing that it went beyond legitimate public-safety regulation and violated the First and Fourth Amendments.

Exercising the Second Amendment doesn't require surrendering the First Amendment at the door. It damn sure shouldn't weaken the Fourth because there's an FFL attached to someone's home address either. THAT IS A CROCK OF SHIAT!

Our constitutional rights work in tandem just as much as they do individually. Government doesn't get to regulate activity surrounding one right while treating the protections of the others like they're somehow less important.

Anywho... I hope those of you who read this take a moment to looks into this case. Can't help but worry about how it could affect the rest of the nation in a negative way, especially with all the Flock Camera chaos.

Shall Not Be Infringed, right?

Richards v. Newsom PDF: 25-693.pdf