Yesterday, a divided Ninth Circuit handed down Richards v. Newsom, rejecting a facial challenge to a California law, California Penal Code Section 26806, which requires federally licensed firearms dealers to maintain digital recording systems on their business premises. The law was challenged on First Amendment, Fourth Amendment, and Fifth Amendment grounds. I wanted to focus on the Fourth Amendment issues in this post, as I'm not sure the majority's reasoning was right.
I hadn't heard of this law until yesterday, so my apologies if I'm getting the details wrong. But as I understand it, the law requires federally licensed firearms dealers (which I'll just call "gun shops" for short, if that's not too inaccurate) to have 24/7 video surveillance of "interior views of all entries or exits to the premises, [a]ll areas where firearms are displayed[, and] all points of sale, sufficient to identify the parties involved in the transaction." They have to store the video for at least a year, and agree to turn over video records in response to a search warrant or other court order.
From a Fourth Amendment perspective, this is a hard law school exam question. For starters, you have to figure out what to make of the order to have the system. Is the requirement of installation and use (to the extent a particular shop doesn't already have such a system) forcing the gun shop owner to act as a state actor, installing the device? If so, what exactly is searched, and whose interests are implicated— those of the gun store owner, or the customers and others in the gun store? Does this fall within the famously murky record-keeping framework of California Bankers Association v. Schultz, or is it more like an order to compel records as in Carpenter or Chatrie?
