The Ninth Circuit on August 27 affirmed dismissal of a constitutional challenge to California Penal Code section 26806, the state's recording mandate for federally licensed firearm dealers. The published opinion in Richards v. Newsom leaves the law in place after a three-judge panel concluded that the plaintiffs had not stated viable First, Fourth, or Fifth Amendment claims. Judge Lucy Koh wrote for the panel, joined by Judge Ana de Alba. Judge Kenneth Lee dissented in part.
The result is not a Second Amendment ruling. The original complaint included Second and Fourteenth Amendment claims, but the plaintiffs agreed to dismiss those claims in June 2024, along with all claims against Governor Gavin Newsom. The operative complaint targeted Attorney General Rob Bonta under the First, Fourth, and Fifth Amendments. The district court dismissed it for failure to state a claim, entered final judgment on January 28, 2025, and the Ninth Circuit reviewed that dismissal from the start rather than deferring to the district court's legal analysis.
What dealers must record
Section 26806 has applied since January 1, 2024. It requires every California FFL business premises to use permanently mounted cameras covering all entrances and exits, firearm display areas, and points of sale. Interior systems must capture both clear images and audio. The cameras must record continuously, 24 hours a day, at no less than 15 frames per second, and the footage must identify people involved in transactions. Recordings must carry an accurate date and time and be retained for at least one year.
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The storage device must be secured against tampering, unauthorized access, use, or theft, and the system needs a failure notification for interruptions or storage-device problems. Dealers must post a conspicuous warning at every entrance stating that the premises are under video and audio surveillance and that images and conversations may be recorded. They also must certify annually to the California Department of Justice that the system is working properly. Local governments may impose compatible surveillance rules of their own.
The statute limits when recordings may be released or accessed. It permits access by a state or licensing agent inspecting compliance when a warrant or court order generally would not be required. It also permits disclosure under a search warrant or other court order, for an insurance claim, or through civil discovery. Those limits mattered to the panel because the plaintiffs framed the system itself as government surveillance, even though dealers possess the recordings and the complaint did not allege that state officials had physically entered property or obtained any footage.
Why the panel rejected the claims
On the Fourth Amendment claim, the panel held that recording by a private FFL does not become a government search merely because state law requires it. The complaint alleged neither physical intrusion by the state nor state access to a recording. The court also rejected the idea that compliance turns dealers into state actors. It separately declined to adopt Judge Lee's view that inspections could expose home-based dealers to unrestricted warrantless searches, reasoning that section 26806 does not itself authorize compliance inspections and that the two home-based plaintiffs lacked standing to challenge hypothetical future searches.
The Fifth Amendment theories also failed. The panel found no alleged physical taking because California neither acquired nor took possession of a dealer's property. Applying the regulatory-takings factors, it concluded that the mandate did not unreasonably impair property value or use, did not improperly upset reasonable investment-backed expectations in a closely regulated business, and was not comparable to a state physical invasion. The opinion noted that firearm dealers already operate under extensive licensing, recordkeeping, inventory-security, theft-reporting, tracing, and inspection requirements.
The panel rejected four First Amendment theories: overbreadth, anonymity, free association, and chilled speech. It said the law does not punish speech, require visitors to identify themselves, or force disclosure of association. Allegations that customers would fear unspecified future misuse of recordings described a subjective concern, not government action that would deter a person of ordinary firmness. Judge Lee disagreed on two points, arguing that continuous audio recording burdens the exchange of political information and that the inspection framework gives officials excessive discretion over home-based FFLs. The majority said those theories were not pleaded by the plaintiffs.
For California dealers, the immediate consequence is continued compliance with the full recording, retention, signage, security, notification, and annual-certification rules. Customers should still expect conversations and images in covered dealer areas to be captured, but the decision does not authorize unrestricted public release of recordings or hold that every future government request for footage is lawful. The panel decided whether this complaint stated claims, not every possible as-applied dispute involving an actual search, disclosure, data breach, or enforcement action.
The opinion does not say whether the plaintiffs will seek rehearing, rehearing en banc, or Supreme Court review. Unless a later court changes the result, the district court's dismissal and section 26806 remain operative. Any next milestone will come from a rehearing filing, a certiorari petition, or a separate challenge based on concrete access to footage or an actual inspection rather than the hypothetical events addressed here.
About the Author
Nick Sawinyh - Nick Sawinyh is a father, husband, hobby farmer, and gun enthusiast from Kentucky. He founded GunsNation and writes most of what appears on this blog.
