Richards v. Newsom

majority opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADAM RICHARDS; GERALD No. 25-693

CLARK; JESSE HARRIS; GUN

D.C. No.

OWNERS OF CALIFORNIA, INC.;

8:23-cv-02413-GUN OWNERS OF AMERICA,

JVS-KES

INC.; GUN OWNERS

FOUNDATION; CALIFORNIA

RIFLE & PISTOL ASSOCIATION;

SECOND AMENDMENT OPINION

FOUNDATION; ON TARGET

INDOOR SHOOTING RANGE,

LLC; GAALSWYK ENTERPRISES,

INC.; JEFFREY

VANDERMEULEN,

Plaintiffs - Appellants,

GAVIN NEWSOM; ROB BONTA;

DOES,

Defendants - Appellees.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

2 RICHARDS V. NEWSOM

Argued and Submitted February 2, 2026

Pasadena, California

Filed August 27, 2026

Before: Kenneth K. Lee, Lucy H. Koh, and Ana de Alba,

Circuit Judges.

Opinion by Judge Koh;

Partial Dissent by Judge Lee

SUMMARY *

First, Fourth, and Fifth Amendments

The panel affirmed the district court’s dismissal for

failure to state a claim of a complaint challenging California Penal Code section 26806 (“Section 26806”), which requires all federally licensed firearms dealers (“FFLs”) to maintain a digital recording system on their business premises.

Plaintiffs, who include FFLs operating in brick-andmortar stores, FFLs operating out of their homes, gun rights organizations, and private citizens, alleged that Section 26806’s recording requirement violates the First, Fourth, and Fifth Amendments.

The panel held that Plaintiffs failed to allege a Fourth Amendment claim. The panel rejected Plaintiffs’ contention

This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

RICHARDS V. NEWSOM 3

that a search occurs the moment that an FFL’s recording

system begins to record any audiovisual data. Plaintiffs failed to state a cognizable claim that Section 26806 violates the Fourth Amendment because Plaintiffs failed to allege any physical intrusion or access of recordings by the state and failed to allege that mere compliance with Section

26806’s requirements transforms FFLs into state actors.

The panel next held that Plaintiffs failed to allege a Fifth Amendment claim. The panel rejected Plaintiffs’ contention that Section 26806 creates a per se physical taking because Plaintiffs failed to allege that the government “acquires” or “physically takes possession of an interest” in FFLs’

property. The panel further held that Section 26806 does not effect a regulatory taking because: (1) Section 26806 does not impermissibly interfere with reasonable investmentbacked expectations; (2) the economic impact of Section

26806 does not unreasonably impair the value or use of

FFLs’ property; and (3) the character of the government

action does not weigh in favor of Plaintiffs, who failed to allege that Section 26806 is akin to a physical invasion of FFLs’ property by the state, rather than a policy to promote the common good.

Lastly, the panel held that Plaintiffs failed to allege a First Amendment violation under any of the legal theories advanced by Plaintiffs, specifically, that Section 26806: (1) is overbroad; (2) violates the right to anonymity;

(3) violates the right to free association; and (4) chills speech. Plaintiffs’ overbreadth challenge failed because Plaintiffs did not allege any facts showing that Section 26806 punishes or otherwise regulates speech or conduct

necessarily associated with speech. Plaintiffs’ right to anonymity theory failed because nothing in Section 26806 requires FFL visitors or owners to disclose their names or 4 RICHARDS V. NEWSOM

other identifying information. Similarly, Plaintiffs’ right to free association theory failed because Section 26806 does not mandate any forced disclosure at all. Finally, Plaintiffs’ contention that Section 26806 will “inevitably” chill speech failed because Plaintiffs did not allege that a person of ordinary firmness would fear adverse action from the

government and instead alleged only a subjective fear that the state might misuse recordings in some unspecified way.

The dissent did not dispute the above analysis but instead concluded that Section 26806 violates the Fourth

Amendment and First Amendment based on theories not

advanced by Plaintiffs. The panel rejected the dissent’s Fourth Amendment theory that Section 26806 authorizes the state to conduct unannounced, warrantless searches of homebased FFLs without restriction. The panel so held for three reasons. First, Section 26806 does not authorize the state to conduct compliance inspections at all. Rather, that authority arises under a variety of other statutes and regulations, none of which Plaintiffs challenged in the complaint. Second, even if Section 26806 authorizes inspections, the statute is facially valid under New York v. Burger, 482 U.S. 691

(1987). Third, the two home-based FFL Plaintiffs lack

standing to assert an as applied challenge to the inspection scheme based on hypothetical searches that might occur in the future.

The panel also declined to adopt the dissent’s novel First Amendment theory based on the “right to receive and

exchange information” because the cases cited by the dissent do not support the dissent’s assertion that Section 26806 violates a First Amendment right to receive and exchange information. Rather, in each of those cases, the government prohibited the exchange of certain information between

willing speakers and receivers.

RICHARDS V. NEWSOM 5

Dissenting in part, Judge Lee wrote that California’s

surveillance law violates the First Amendment right to

receive and exchange information because continuous audio surveillance inhibits exchange of core political speech. He further wrote that the law violates the Fourth Amendment because it grants inspectors unbridled discretion in

conducting inspections of home-based FFLs.

COUNSEL

Anna M. Barvir (argued) and C.D. Michel, Michel &

Associates PC, Long Beach, California; Robert J. Olson,

William J. Olson PC, Vienna, Virginia; Donald Kilmer Jr., Law Offices of Donald Kilmer APC, Caldwell, Idaho;

Stephen D. Stamboulieh, Stamboulieh Law PLLC, Olive

Branch, Mississippi; for Plaintiffs-Appellants.

Anne P. Bellows (argued) and Carolyn F. Downs, Deputy

Attorneys General; Mark R. Beckington and Todd

Grabarsky, Supervising Deputy Attorneys General; Thomas

S. Patterson, Senior Assistant Attorney General; Rob Bonta, California Attorney General; Office of the California

Attorney General, San Francisco, California; for

Defendants-Appellees.

Alison C. Barnes and Emily Walsh, Everytown Law,

Washington, D.C., for Amici Curiae Everytown for Gun

Safety Support Fund, Brady Center To Prevent Gun

Violence, and Giffords Law Center.

6 RICHARDS V. NEWSOM

OPINION

KOH, Circuit Judge:

California Penal Code section 26806 (“Section 26806”)

requires all federally licensed firearm dealers (commonly known as Federal Firearms Licensees, or “FFLs”) in

California to maintain a digital recording system on their business premises. Plaintiffs, who include FFLs operating in brick-and-mortar stores, FFLs operating out of their homes, gun rights organizations, and private citizens, challenge Section 26806 on the grounds that the statute violates the First, Fourth, and Fifth Amendments to the United States Constitution. The district court dismissed their complaint for failure to state a claim. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Statutory Background

The sale of firearms is governed by an extensive set of

federal, state, and local laws and regulations. To engage in the business of dealing in firearms, both federal and

California law require that prospective dealers apply for and obtain a federal license from the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”). See 18 U.S.C.

§ 922(a); 27 C.F.R. § 478.41; Cal. Penal Code

§§ 26500, 26700(a). The process of obtaining a federal

firearms license requires prospective dealers to pass a

background check; submit fingerprints and photographs to the ATF; and meet several other criteria, such as having legitimate business premises. See 18 U.S.C. § 923(a), (d). In addition, California law requires prospective dealers to have “any regulatory or business license, or licenses, required by local government”; “a valid seller’s permit issued by the

RICHARDS V. NEWSOM 7

California Department of Tax and Fee Administration”; “a certificate of eligibility issued by the [California]

Department of Justice” (“California DOJ”); an annual

license granted by local licensing authorities; and to be listed on the California DOJ’s centralized list of persons licensed to sell firearms. Cal. Penal Code § 26700(b)-(f); see also Cal. Penal Code §§ 26500, 26705, 26715.

Once in operation, FFLs are subject to a host of federal and state regulations governing nearly all aspects of firearms sales, including: securing firearm inventory and dealer

facilities (Cal. Penal Code § 26890); maintaining accurate inventory and transaction records (18 U.S.C.

§ 923(g)(1)(A); 27 C.F.R. § 478.121); timely reporting

thefts or losses (18 U.S.C. § 923(g)(6); Cal. Penal Code § 26885(b)); and aiding law enforcement by helping to trace firearms involved in crimes to their last retail point of sale (18 U.S.C. § 923(g)(7); 27 C.F.R. § 478.25a). FFLs must

also submit to inspections for compliance with federal and state law and ensure that the inspecting agent “has

reasonable access to all firearms transaction records, the firearms inventory, security features, and all areas within the business premises.” Cal. Code Regs. Tit. 11, § 4022(a); see also 18 U.S.C. § 923(g).

In addition to these requirements, the ATF recommends

that FFLs maintain video recording systems on their

premises. The ATF’s recommendations state that cameras

should be placed “in a direction that will capture people’s faces and features” and should be “recording at all times.” Learn About Firearms Safety and Security, ATF,

https://perma.cc/47E3-9ZBV (last updated Feb. 6, 2026).

The ATF recommends 24/7 recording even though the ATF

also recommends that FFLs “remov[e] all firearms from

8 RICHARDS V. NEWSOM

display cases and racks and plac[e] them in a gun vault at night.” Id.

Gun industry trade associations provide similar

recommendations. The National Shooting Sports

Foundation (“NSSF”), the largest trade association in the industry, has stated that video recording systems are

“essential for every FFL.” John Bocker, Security Cameras — Yes, You Need Them, NSSF (Feb. 15, 2017),

https://perma.cc/RN4R-4ALK. According to NSSF,

installing cameras to “monitor what is going on both inside and outside the business” is the “most practical” way to deter burglaries, theft, shoplifting, and other criminal activity, given that “most small businesses can’t afford a security staff to monitor their locations day and night.” Id. Many gun dealers, including Walmart, follow this guidance and have implemented policies of recording the point of sale for all firearm transactions. Walmart Policies and Guidelines,

Firearms and Ammunition Guidelines, Walmart (Sep. 3,

2019), https://perma.cc/SKC3-CL58.

In addition, numerous states, including Illinois, New

York, and Washington, have passed laws requiring FFLs to maintain recording systems on their premises, with cameras placed in locations covering every point of sale, entrance, and exit. See 430 Ill. Comp. Stat. 68/5-50(a); N.Y. Gen. Bus. Law § 875-b(2); Wash. Rev. Code § 9.41.110(11)(a).

Illinois and Washington also require that FFLs post a sign alerting visitors that the premises are under surveillance. See 430 Ill. Comp. Stat. 68/5-50(b); Wash. Rev. Code

§ 9.41.110(11)(c). None of these laws limit their recording requirements to the FFL’s business hours. See, e.g., Wash. Rev. Code § 9.41.110(11)(a)(iv) (requiring that the

surveillance system “be capable of recording 24 hours per day” and “either (A) record continuously or (B) be activated

RICHARDS V. NEWSOM 9

by motion and remain active for at least 15 seconds after motion ceases to be detected”). In addition, Maryland

requires that FFLs either lock all firearms in a vault or safe outside of business hours or maintain a recording system capable of recording the inside and outside of the building in which firearms are stored. Md. Code Ann., Pub. Safety § 5-145.1(a).

i. Section 26806

On September 30, 2022, California Governor Gavin

Newsom signed into law Senate Bill 1384 (“SB 1384”). See S.B. 1384, 2021-2022 Reg. Sess. (Cal. 2022). One of the

purposes of SB 1384 was “to strengthen security

requirements for licensed firearms dealers.” Cal. S. Comm. on Pub. Safety, Report on S.B. 1384 (“S. Comm. Report”), 2021-2022 Reg. Sess., at 1 (2022). To that end, SB 1384

created Section 26806, which requires FFLs to maintain a digital video recording system on their business premises. See id. at 3. The statute enumerates eight requirements with which FFLs’ recording systems must comply. Specifically, subsection (a) provides:

(a) Commencing January 1, 2024, a licensee

shall ensure that its business premises are

monitored by a digital video surveillance

system that meets all of the following

requirements:

(1) The system shall clearly record images

and, for systems located inside the

premises, audio, of the area under

surveillance.

(2) Each camera shall be permanently

mounted in a fixed location. Cameras shall

10 RICHARDS V. NEWSOM

be placed in locations that allow the camera

to clearly record activity occurring in all

areas described in paragraph (3) and

reasonably produce recordings that allow

for the clear identification of any person.

(3) The areas recorded shall include,

without limitation, all of the following:

(A) Interior views of all entries or exits

to the premises.

(B) All areas where firearms are

displayed.

identify the parties involved in the

transaction.

(4) The system shall continuously record

24 hours per day at a frame rate no less than

15 frames per second.

(5) The media or device on which

recordings are stored shall be secured in a

manner to protect the recording from

tampering, unauthorized access or use, or

theft.

(6) Recordings shall be maintained for a

minimum of one year.

(7) Recorded images shall clearly and

accurately display the date and time.

(8) The system shall be equipped with a

failure notification system that provides

notification to the licensee of any

RICHARDS V. NEWSOM 11

interruption or failure of the system or

storage device.

Cal. Penal Code § 26806(a). These requirements align with the specifications suggested by the ATF and the gun

industry. 1

Section 26806 also restricts FFLs’ ability to share

audiovisual recordings with others. Specifically, subsection (b) prohibits FFLs from allowing any other person to access the recording system, or from sharing recordings with any other person, except in limited circumstances:

(b) A licensee shall not use, share, allow

access, or otherwise release recordings, to

any person except as follows:

(1) A licensee shall allow access to the

system to an agent of the department or a

licensing authority conducting an

inspection of the licensee’s premises, for

the purpose of inspecting the system for

compliance with this section, and only if a

warrant or court order would not generally

be required for that access.

(2) A licensee shall allow access to the

system or release recordings to any person

See, e.g., Learn About Firearms Safety and Security (recommending that cameras be placed “in a direction that will capture people’s faces and features” and that the system should be “recording at all times”); John Bocker, Security Camera System Technology Today, NSSF (Feb. 21, 2017), https://perma.cc/SB38-U5P9 (noting that modern cameras allow FFLs to “see the face of the person”).

12 RICHARDS V. NEWSOM

pursuant to search warrant or other court

order.

(3) A licensee may allow access to the

system or release recordings to any person

in response to an insurance claim or as part

of the civil discovery process, including,

but not limited to, in response to subpoenas,

request for production or inspection, or

other court order.

Id. § 26806(b).

Finally, subsections (c) through (e) provide the

following additional requirements:

conspicuous place at each entrance to the

premises that states in block letters not less

than one inch in height:

“THESE PREMISES ARE UNDER VIDEO

AND AUDIO SURVEILLANCE. YOUR

IMAGE AND CONVERSATIONS MAY

BE RECORDED.”

(d) A licensee shall, on an annual basis,

provide certification to the department, in a

manner prescribed by the department, that its

video surveillance system is in proper

working order.

(e) This section does not preclude any local

authority or local governing body from

adopting or enforcing local laws or policies

regarding video surveillance that do not

RICHARDS V. NEWSOM 13

contradict or conflict with the requirements

of this section.

Id. § 26806(c)-(e).

In enacting SB 1384, the California Legislature sought

to address the “persistent problem” of gun theft from FFLs. S. Comm. Report at 7; Cal. Assemb. Comm. on Pub. Safety, Report on S.B. 1384 (“Assemb. Comm. Report”), 2021-2022 Reg. Sess., at 6 (2022). According to data compiled by the ATF, 34,339 firearms were stolen from FFLs between

2017 and 2021. See ATF, National Firearms Commerce and

Trafficking Assessment: Firearms Thefts, Volume II, Part V, at 2 (2023), https://perma.cc/EVA4-CXH8. Approximately

80 percent of these guns were stolen in burglaries, defined as thefts involving the unlawful entry of a structure with intent to commit a felony or theft therein, which suggests that gun theft often occurs outside an FFL’s normal business hours. See id. at 1-2. In the Senate’s and Assembly’s

Committee Reports on SB 1384 (“Committee Reports”), the

California Legislature noted that between 2012 and 2019, California had the seventh highest rate of gun theft of any state. S. Comm. Report at 7; Assemb. Comm. Report at 7.

The Committee Reports further cited one instance in which more than 200 guns were stolen in less than three months in the Sacramento area alone. S. Comm. Report at 7; Assemb. Comm. Report at 6-7.

In addition to combatting gun theft, SB 1384 also sought to curb the illegal practice known as “straw purchasing,” where one person purchases a firearm for another person

who cannot or does not want to make the purchase himself or herself. The Committee Reports noted that there “are

more than 30,000 attempted straw purchases each year”

nationally; that “more than two-thirds of dealers experienced 14 RICHARDS V. NEWSOM

at least one attempted straw purchase” in a given year; and that “one in five gun sellers” in a year “were willing to sell guns to people explicitly asking to buy firearms on behalf of someone else.” S. Comm. Report at 7 (citation omitted);

Assemb. Comm. Report at 7 (citation omitted).

Section 26806 took effect on January 1, 2024. See Cal.

Penal Code § 26806(a).

B. Factual Background

Plaintiffs are FFLs, gun rights organizations, and private citizens. The FFL Plaintiffs include FFLs who operate brickand-mortar stores, such as On Target Indoor Shooting

Range, LLC, and Gaalswyk Enterprises, Inc. The FFL

Plaintiffs also include two “home-based” FFLs, Adam

Richards (“Richards”) and Jeffrey Vandermeulen

(“Vandermeulen”), who operate their firearm sales

businesses out of their personal residences. Richards is “an attorney that keeps a home office at the same location where he conducts his FFL business.” Richards alleges that he

“chose to operate his FFL out of a separate structure at his residence” and that his family and children visit him in his office in the mornings and evenings before bed.

Vandermeulen likewise operates “multiple enterprises,”

including “a small aerial ash dispersal business out of his home.” He also “operates a retail sales firearm business and online firearm business” out of his home, “where he sells firearms to customers both inside and outside of California.”

Plaintiffs Gun Owners of America, Inc. (“GOA”), Gun

Owners of California, Inc. (“GOC”), California Rifle &

Pistol Association, Incorporated (“CRPA”), and the Second Amendment Foundation (“SAF”) (collectively, “Organization Plaintiffs”) are nonprofit organizations that promote gun rights and gun ownership. The Organization

RICHARDS V. NEWSOM 15

Plaintiffs allege that they and their members engage in

various expressive and associational activities related to firearms. For example, GOC alleges that “its members

frequent FFL shops and gun shows and discuss issues

pertaining to legal and political issues with the FFLs to make sure they are aware of compliance issues and upcoming

legislative changes.” GOC further alleges that it makes

“publications and other materials available for prospective members and the general public in gun stores across

California.” Similarly, CRPA alleges that its members

“frequent gun stores and gun shows to engage in lawful

purchases[] [and] expressive activities with like-minded people, including discussions related to firearms.”

Plaintiffs also include private citizens such as Gerald

Clark (“Clark”), a CRPA member and shooting instructor.

Clark alleges that he regularly visits gun shows, gun ranges, and gun shops, where he teaches gun safety, purchases

firearms, and “discusses politics surrounding the

requirements of those purchases.”

Plaintiffs allege that Section 26806’s recording

requirement interferes with their constitutional rights in a variety of ways. For example, Plaintiffs “estimate” that home-based FFLs “will be required to install government

surveillance systems in virtually every corner of the home.” In addition, Plaintiffs allege that Section 26806 will prevent private citizens like Clark “from freely communicating with FFLs as to ongoing legal and legislative initiatives for fear of being recorded by the government.” The Organization

Plaintiffs further allege that Section 26806 “quite literally will result in California’s creation of a partial list of members of GOA, GOC, CRPA and SAF as everyone who signs up as

a member of either organization will be monitored and

surveilled by the state.” Plaintiffs thus broadly assert that 16 RICHARDS V. NEWSOM

“Section 26806 is California’s latest effort to target,

marginalize, and drive from the market dissenters wishing to exercise the right to keep and bear arms.”

C. Procedural History

On December 19, 2023, Plaintiffs filed a lawsuit

challenging the constitutionality of Section 26806.

Plaintiffs’ original complaint asserted five causes of action against Governor Gavin Newsom and Attorney General Rob

Bonta for violations of the First, Second, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution

under 42 U.S.C. § 1983. On December 20, 2023, Plaintiffs filed a motion for a temporary restraining order and

preliminary injunction. The district court found that

Plaintiffs failed to establish a likelihood of success on the merits for any of their claims and denied the motion.

On June 24, 2024, the district court granted the parties’ joint stipulation to dismiss Plaintiffs’ Second Amendment claim, Fourteenth Amendment claim, and all claims against the Governor, and granted Plaintiffs leave to amend their complaint. Plaintiffs filed the operative First Amended

Complaint (“FAC”) on June 28, 2024. The FAC asserts three causes of action against the Attorney General for violations of the First, Fourth, and Fifth Amendments. Among other

relief, the FAC seeks preliminary and permanent injunctive relief against the enforcement of Section 26806, as well as a declaration that Section 26806 is unconstitutional “on its face and as applied to the Plaintiffs.”

The Attorney General moved to dismiss the FAC for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In an order dated October 16, 2024, the district court granted the motion and dismissed each of Plaintiffs’ claims.

RICHARDS V. NEWSOM 17

The district court granted Plaintiffs leave to amend.

However, instead of amending, and before the district court had entered final judgment, Plaintiffs filed an appeal with this Court. Plaintiffs then voluntarily dismissed their appeal after this Court issued an order requiring Plaintiffs to explain why their appeal should not be dismissed for lack of

jurisdiction.

Following the dismissal of their appeal, Plaintiffs

informed the district court that they had elected not to amend the FAC and requested that the district court enter final judgment dismissing the action without prejudice. The

district court entered final judgment on January 28, 2025. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

the district court’s dismissal for failure to state a claim de novo. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003

(9th Cir. 2010). Dismissal for failure to state a claim is appropriate “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v.

Block, 250 F.3d 729, 732 (9th Cir. 2001)).

III. DISCUSSION

Plaintiffs appeal the district court’s dismissal of their claims challenging Section 26806 under the Fourth, Fifth, and First Amendments to the U.S. Constitution. We address each in turn, and we affirm.

18 RICHARDS V. NEWSOM

A. Fourth Amendment

The Fourth Amendment provides, in relevant part: “The

right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” U.S. Const. amend. IV. 2 “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). The general rule is that “searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). One such exception exists for administrative

searches of businesses in “closely regulated” industries, provided certain criteria are met. See New York v. Burger, 482 U.S. 691, 702 (1987). The U.S. Supreme Court has long recognized that the firearms dealing industry is a closely regulated industry. See id. at 700-01; United States v.

Biswell, 406 U.S. 311, 316 (1972).

Before assessing the reasonableness of a governmental

search, however, we must first determine whether the

challenged conduct “amount[s] to [a] search[] or seizure[]” conducted by “the Government or its agents.” Skinner v. Ry. Lab. Execs.’ Ass’n, 489 U.S. 602, 614 (1989). The Supreme Court has articulated two tests for determining whether a Fourth Amendment search has occurred. The first test, the “physical intrusion” test, is “tied to common-law trespass.”

The Fourth Amendment’s protections extend to searches and seizures conducted by state officers under the Fourteenth Amendment. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

RICHARDS V. NEWSOM 19

United States v. Jones, 565 U.S. 400, 404-05 (2012). In

keeping with the common law’s historical focus on property rights, the physical intrusion test asks whether the

government has “obtain[ed] information by physically

intruding on a constitutionally protected area.” Id. at 406 n.3. The second test, by contrast, focuses on an individual’s “reasonable expectation of privacy.” Katz, 389 U.S. at 360 (Harlan, J., concurring). Under this “reasonable expectation of privacy” test, “when an individual seeks to preserve

something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that private sphere generally qualifies as a search.” Carpenter v. United States, 585 U.S. 296, 304

(2018) (citation modified).

Plaintiffs allege that Section 26806 effects a search by requiring FFLs to install and maintain a continuous

recording system in the FFLs’ places of business. Plaintiffs’ argument is that the mere creation and storage of recordings in and of itself constitutes a search. In other words, Plaintiffs contend that a search occurs the moment any data is

collected by the FFLs’ recording system, regardless of

whether the state ever actually views or uses those

recordings. For the reasons explained below, we hold that this novel theory is not cognizable under the Fourth

Amendment. The dissent does not contend otherwise.

Instead, the dissent asserts its own theory that Section 26806 is invalid because the statute authorizes the state to conduct compliance inspections without adequate limitations on

when such inspections may take place. We likewise reject the dissent’s theory for the reasons explained below.

20 RICHARDS V. NEWSOM

i. Moment of Recording Theory

Plaintiffs’ central argument is that a search occurs the moment that an FFL’s recording system begins to record any audiovisual data. In support of this argument, Plaintiffs rely on the U.S. Supreme Court’s decisions in United States v. Jones and Carpenter v. United States. According to

Plaintiffs, Jones and Carpenter recognized “that the

continuous collection of personal information by or at the direction of the government is itself a search, no matter when the government physically seizes the data.” We disagree. Neither Jones’s application of the physical intrusion test nor Carpenter’s application of the reasonable expectation of privacy test supports Plaintiffs’ novel “moment of

recording” theory.

In Jones, the Supreme Court considered whether the

attachment of a global positioning system (“GPS”) tracking device onto an individual’s vehicle by government agents constituted a Fourth Amendment search. 565 U.S. at 402.

The Court held that by installing the GPS device to the

vehicle and subsequently using the device to track the

vehicle’s movements, the government had “physically

occupied private property for the purpose of obtaining

information.” Id. at 404. The Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was

adopted.” Id. at 404-05. Thus, under the physical intrusion test, the Court held that the government’s attachment of the GPS device amounted to a Fourth Amendment search. Id.

Jones’s application of the physical intrusion test is

directly at odds with Plaintiffs’ moment of recording theory. Jones stands for the proposition that a Fourth Amendment search occurs when the government “obtains information by

RICHARDS V. NEWSOM 21

physically intruding on a constitutionally protected area.” Id. at 406 n.3 (emphasis added). But here, unlike in Jones, the surveillance technology at issue is not installed by

government agents. Plaintiffs instead allege that the FFLs themselves are responsible for installing the recording

systems under Section 26806 and contend that a search

occurs even though the state never steps foot onto Plaintiffs’ property. Because Plaintiffs have not alleged any physical intrusion by governmental actors, Plaintiffs’ moment of

recording theory fails under Jones.

Plaintiffs’ reliance on Carpenter is likewise unavailing. There, the Supreme Court held that the government’s

acquisition of historical cell phone location data from

wireless carriers constituted a search under Katz’s

reasonable expectation of privacy test. See Carpenter, 585 U.S. at 313. Plaintiffs interpret Carpenter as holding that the mere collection of the cell phone data by the wireless carriers was itself a search, “regardless of when or whether the data was viewed” by the government. That argument plainly

misreads Carpenter and ignores the Court’s repeated

emphasis that the search occurred “when the Government

accessed [the cell phone data] from the wireless carriers.” Id. at 313 (emphasis added); see also id. at 316 (“The

Government’s acquisition of the cell-site records was a

search within the meaning of the Fourth Amendment.”

(emphasis added)), 317, 320. Indeed, the Supreme Court

stressed the exact same point recently in Chatrie v. United States. See 146 S. Ct. 2193, 2206 (2026) (relying on

Carpenter and holding that the police conduct a search

“when they acquire [a cell-phone user’s location history] information” (emphasis added)). Nothing in Carpenter or

Chatrie suggests that a search can occur independent of any actual access of data or information by the government.

22 RICHARDS V. NEWSOM

Unable to articulate any physical intrusion or actual

access of audiovisual recordings by the government,

Plaintiffs instead argue that Section 26806 transforms FFLs into state actors for purposes of the Fourth Amendment. To support this argument, Plaintiffs argue that they satisfy three tests discussed in Brunette v. Humane Society of Ventura County for determining when a private party has engaged in state action under 42 U.S.C. § 1983: (1) the “joint action” test, (2) the “symbiotic relationship” test, and (3) the “public functions” test. See 294 F.3d 1205, 1210 (9th Cir. 2002). 3 Again, we disagree.

First, Plaintiffs have failed to allege joint action, which requires demonstrating that the private party is a “‘willful participant’ with the State or its agents” in the challenged activity. Id. at 1211 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)). Plainly, Plaintiffs do not allege that FFLs are willful participants in the state’s conduct. Rather, Plaintiffs argue that FFLs have been “conscript[ed]” by the state and expressly deny any “voluntary cooperation with law

enforcement.” Accordingly, we are not convinced that

Plaintiffs satisfy the “joint action” test.

Second, Plaintiffs have failed to allege a symbiotic

relationship. The essence of a symbiotic relationship is “substantial coordination and integration between the

Notably, Brunette discussed these tests in the context of determining whether “a litigant may seek damages under 42 U.S.C. § 1983 from a private party based on a violation of a constitutional right.” 294 F.3d at 1209 (emphasis added). Here, however, Plaintiffs rely on Brunette’s tests to support their argument that Section 26806 transforms FFLs into state actors for purposes of determining whether a Fourth Amendment search has occurred. Because neither party has questioned the applicability of Brunette’s state action tests in this case, we assume without deciding that those tests apply.

RICHARDS V. NEWSOM 23

private entity and the government,” often involving

“significant financial integration” between the parties. Id. at 1213. Plaintiffs do not allege any form of integration with the state, financial or otherwise, and instead repeatedly argue that the statute’s recording scheme operates for the

“government’s exclusive benefit.” The “mere fact” that

FFLs operate businesses that are “subject to state regulation does not by itself convert [Plaintiffs’] action into that of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 350

(1974).

Finally, Plaintiffs fail to satisfy the public function test. “Private activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State.’” Brunette, 294 F.3d at 1214 (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). Although law

enforcement is a traditional state function, see id., a property owner’s installation and maintenance of a recording system on their own property does not amount to law enforcement activity. Indeed, Plaintiffs concede that even before Section 26806 took effect, “many gun shops already ha[d] some

form of security camera to deal with break ins and the like.” Thus, Section 26806’s recording scheme does not task FFLs with conducting law enforcement activity or any other

exclusive state function. See Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 52-53 (1974) (rejecting argument that banks become agents of the government when making and keeping

certain records required by regulation, noting that the “fact that a large number of banks voluntarily kept records of this sort before they were required to do so by regulation is an indication that the records were thought useful to the bank in the conduct of its own business”).

In sum, Plaintiffs have failed to allege that mere

compliance with Section 26806’s requirements somehow

24 RICHARDS V. NEWSOM

transforms FFLs into state actors. And because Plaintiffs cannot show any warrantless physical intrusion or access of recordings by the state, Plaintiffs’ moment of recording theory fails to state a cognizable claim that Section 26806 violates the Fourth Amendment.

ii. Compliance Inspection Theory

The dissent does not dispute that Plaintiffs have failed to state a claim based on their moment of recording theory. Nonetheless, the dissent finds a Fourth Amendment

violation based on its own theory of a search not advanced by Plaintiffs in this appeal. According to the dissent, Section 26806 authorizes the state to conduct unannounced,

warrantless searches of home-based FFLs’ personal

residences at any time of day and to view video footage and listen to audio recordings without restriction. 4 The dissent concludes that the statute lacks adequate restrictions on the time and scope of these inspections, and thus, that it is unconstitutional under the framework outlined in New York v. Burger, 482 U.S. 691.

The dissent contends that Plaintiffs raised a compliance inspection theory by pointing to a single sentence in Plaintiffs’ opening brief summarizing our holding in Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985). Dissent at 68-69 n.9. The very next paragraph of Plaintiffs’ brief, however, reiterated that Plaintiffs’ theory of a search was not premised on “periodic [compliance] inspections” (as in Rush), but rather the “continuous and uninterrupted” nature of Section 26806’s recording scheme. Indeed, throughout their brief, Plaintiffs asserted that their Fourth Amendment claim was the moment of recording theory discussed above, and that “it is irrelevant how many procedural safeguards the statute later provides . . . for retrieving or inspecting the footage.” Because Plaintiffs did not assert the dissent’s compliance inspection theory, the state had no reason to respond to it. See Dissent at 71 n.12.

RICHARDS V. NEWSOM 25

We disagree with this theory for three reasons. First, the dissent misreads the statute. Section 26806 does not

authorize the state to conduct compliance inspections at all. That authority instead arises under a variety of other statutes and regulations, none of which Plaintiffs have challenged in this case. Second, even if Section 26806 authorized

inspections, the statute is facially valid under Burger. Third, Plaintiffs lack standing to assert an as applied challenge based on the dissent’s theory of hypothetical future searches of home-based FFLs.

a. Authorization of Compliance Inspections

Under Section 26806

First, the dissent’s contention that Section 26806 is

invalid because it does not limit inspections to business hours rests on a fundamental misreading of Section 26806. Subsection (b)(1) does not contain such a limitation because subsection (b)(1) does not independently authorize

inspections at all. Rather, subsection (b) sets forth the general rule that a “licensee shall not use, share, allow access, or otherwise release recordings, to any person.” Cal. Penal Code § 26806(b). Subsection (b)(1) carves out an

exception to that rule and provides that FFLs “shall allow access to the system to an agent of the [California DOJ] conducting an inspection of the licensee’s premises,”

provided that “a warrant or court order would not” otherwise be required “for that access.” Id. § 26806(b)(1). Put in more concrete terms, subsection (b) tells FFLs that even though they are required to maintain a recording system, they are not permitted to, for example, give their neighbor access to the system or post recordings on the internet. Subsection (b)(1) then clarifies that notwithstanding this general

prohibition, an FFL is required to give access to the system to an agent who is already conducting a compliance

26 RICHARDS V. NEWSOM

inspection of the FFL’s premises, provided that no warrant is required for such access.

Thus, contrary to the dissent’s assertions, nothing in the text of Section 26806 grants the California DOJ or any other agency the authority to conduct compliance inspections. The state conceded this point at oral argument. The authority to conduct such inspections comes instead from other

California statutes, each of which very clearly states that the California DOJ “may conduct inspections” of the FFL’s

premises. See, e.g., Cal. Penal Code § 26720(a) (“The

Department of Justice may conduct inspections of dealers at least every three years to ensure compliance with the

requirements of this title . . . .” (emphasis added)); Cal. Penal Code § 28480(a) (“The department may conduct onsite

inspections at the business premises of a person on the

centralized list described in Section 28450 to determine compliance with firearms laws pursuant to the provisions listed in Section 16575.” (emphasis added)); see also Cal. Code Regs. Tit. 11, § 4022(a) (“The DOJ may conduct onsite inspections at a dealer’s business premises to determine compliance with firearms laws . . . .” (emphasis added)). Section 26806 contains no such language. 5

The dissent’s focus on the word “shall” in Section 26806 is thus a red herring. The dissent asserts that the statute’s use of the word “shall” “means that the inspector must be allowed to enter for an inspection.” Dissent at 72 (emphasis added). But Section 26806 says no such thing. Instead, the “shall” in Section 26806(b)(1) commands that FFLs must allow access to the system to “agent[s] of the department or a licensing authority conducting an inspection.” Cal. Penal Code § 26806(b)(1) (emphasis added). In other words, the “shall” language only applies when a governmental agent is already conducting an inspection pursuant to another statutory provision and does not grant the agent the authority to conduct that inspection in the first instance.

RICHARDS V. NEWSOM 27

To the extent Plaintiffs wish to adopt the dissent’s theory and take issue with the lack of temporal limitations

governing the state’s ability to conduct compliance

inspections, Plaintiffs must at a minimum challenge the

statutes that “actually authorize[]” such inspections and identify the alleged constitutional deficiencies with those statutes. City of Los Angeles v. Patel, 576 U.S. 409, 418 (2015). Plaintiffs have done neither. Their sole challenge is to Section 26806. In fact, in the FAC, Plaintiffs expressly acknowledged that two different statutes—California Penal Code sections 26720 and 28480—“allow[] CA DOJ to

conduct inspections of FFLs,” but Plaintiffs made no similar allegations regarding Section 26806. Given that Plaintiffs’ sole challenge is to Section 26806, the fact that Section 26806 does not authorize the state to conduct compliance inspections disposes of the dissent’s theory of a Fourth Amendment violation.

Because Plaintiffs have failed to challenge any statute

authorizing warrantless inspections, the dissent’s reliance on Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985), is unavailing. In that case, the challenged statute expressly authorized officers to “enter and inspect ‘any place providing [child care] at any time, with or without notice, to secure

compliance with, or to prevent a violation of, any applicable statute.’” Id. at 721 (emphases in original) (quoting Cal. Health & Safety Code § 1596.852). We concluded that

because the statute “authorized inspection[s] but made no rules governing the procedures that inspectors must follow,” the statute violated the Fourth Amendment. Id. (emphasis added) (quoting Donovan v. Dewey, 452 U.S. 594, 599

(1981)). Here, by contrast, Plaintiffs have not challenged any statute authorizing compliance inspections. Because Section 26806 does not authorize compliance inspections, the

28 RICHARDS V. NEWSOM

dissent errs in finding a Fourth Amendment violation based on Section 26806’s purported lack of time and scope

restrictions.

b. Facial Challenge to Section 26806

Even if Section 26806 authorized inspections, which it

does not, the statute would be facially valid under Burger.

In Burger, the Supreme Court expanded upon an

exception to the Fourth Amendment’s warrant requirement

for administrative searches of commercial premises in

“closely regulated” industries. 482 U.S. at 700. The Court specifically identified the sale of firearms as an example of a closely regulated industry and noted that “[w]hen a

[firearms] dealer chooses to engage in this pervasively

regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.” Id. at 701 (quoting Biswell, 406 U.S. at 316).

In light of the “reduced expectation of privacy” that

exists in the context of a closely regulated industry, the Burger Court held that an administrative search of

commercial premises is reasonable provided three criteria are met: (1) there is a “‘substantial’ government interest that informs the regulatory scheme”; (2) the warrantless

inspection is “necessary to further the regulatory scheme”; and (3) the statute’s inspection program provides “a

constitutionally adequate substitute for a warrant.” Id. at 702-03 (citation modified). To satisfy the third requirement, “the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the

discretion of the inspecting officers.” Id. at 703. In assessing

RICHARDS V. NEWSOM 29

whether the discretion of the inspecting officers is

sufficiently limited, courts look to “the statute as a whole,” including whether “the time, place, and scope of the

inspection is limited.” Id. at 711 & n.21 (citation modified).

The dissent does not dispute that Section 26806 satisfies the first two Burger requirements. Instead, the dissent

contends that the statute fails the third requirement. We disagree. Even assuming that the authority to conduct

compliance inspections arises under Section 26806 rather than another statute, the limitations that Section 26806 places on the scope of such inspections are alone sufficient to satisfy Burger’s third requirement. Specifically, Section 26806 “limit[s] the discretion of the inspecting officers,” id. at 703, by restricting: (1) the parties who may be subjected to inspections (FFLs, see Cal. Penal Code § 26806(b)(1)); (2) the authority that may conduct the inspection (agents of the California DOJ or a licensing authority, see id.

§ 26806(b)(1)); (3) the location of the inspection (specific areas within FFLs’ “business premises,” see id. § 26806(a), (a)(3)(B)-(C)); (4) the items that may be inspected (the recording system, see id. § 26806(a)(1)-(8)); and (5) the purpose of the inspections (to check for compliance with specific requirements set forth in Section 26806, see id. § 26806(b)(1)). These restrictions satisfy Burger because they provide notice to FFLs “that the search is being made pursuant to the law and has a properly defined scope” and adequately “limit the discretion of the inspecting officers.” Burger, 482 U.S. at 703.

Indeed, the Supreme Court in Burger relied on similar

restrictions to uphold the inspection statute at issue in that case. See id. at 711. Specifically, the Court “relied on the restriction of the searches to certain types of businesses and certain types of items that could be inspected.” United States 30 RICHARDS V. NEWSOM

v. 4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1180 (9th Cir. 2006). In light of these restrictions, the Burger Court upheld the statute “even though it did not

indicate how often searches would occur, provided virtually no limitation on the scope of the search within automobile junkyards, and failed to provide limits or guidance on the selection of businesses for inspection.” Id. (citation

modified).

The dissent nonetheless contends that Section 26806 is

unconstitutional because it does not expressly limit

inspections to business hours. But Burger made clear that although temporal limitations “are a factor in [the] analysis,” they “are not determinative . . . so long as the statute, as a whole, places adequate limits upon the discretion of the inspecting officers.” 482 U.S. at 711 n.21 (emphasis added). And although the specific statute at issue in Burger

contained a business hours restriction, the Supreme Court in Donovan v. Dewey upheld an administrative search statute that did not. See 452 U.S. at 596-97, 602 (upholding section 103(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 813(a)).

Accordingly, this Court and numerous other circuits

have upheld 24/7 inspection schemes where, as is the case here, “the need for regulatory compliance” is not “restricted to business hours.” Heffner v. Murphy, 745 F.3d 56, 69 (3d Cir. 2014) (collecting cases permitting 24/7 inspection

schemes and upholding a statute that permitted warrantless inspections of funeral establishments). In United States v. Delgado, for example, we rejected a Burger challenge to a statute that permitted warrantless inspections in the

commercial trucking industry even though the statute did “not designate when the enforcement officers may conduct inspections.” 545 F.3d 1195, 1203 & n.6 (9th Cir. 2008). The

RICHARDS V. NEWSOM 31

lack of a time restriction was not fatal, we said, because “[t]rucks operate twenty-four hours a day and the officers must, necessarily, have the authority to conduct these

administrative inspections at any time.” Id. at 1203 n.6 (quoting United States v. Dominguez-Prieto, 923 F.2d 464, 470 (6th Cir. 1991)).

The dissent disregards these precedents and relies

instead on our decision in Rush, a case which predated

Burger. There, we held that a statute expressly authorizing unannounced inspections of “any place providing [child

care] at any time” violated the Fourth Amendment. Rush,

756 F.2d at 721 (emphasis in original) (quoting Cal. Health & Safety Code § 1596.852(a)). Although we recognized that family day care homes operate in a highly regulated industry, we held that the inspection statute at issue failed to account for the fact that the family day care homes operated as

businesses only during the day when children were present, and only in the areas that children were allowed to access. See id. Because the statute failed to reflect this “peculiar nature of family day care homes” and provided no

restrictions on when or where inspections could take place, we found that the statute’s warrantless search scheme was unconstitutional. Id.

Our decision in Rush thus turned on the fact that the

statute at issue authorized warrantless inspections of places where no conceivable business could occur, and after the business ceased to operate as a business at the end of the day. Here, by contrast, Section 26806 specifically limits any inspection to specific locations within the FFL’s “business premises,” such as “areas where firearms are displayed” and “points of sale.” Cal. Penal Code § 26806(a), (a)(3)(B)-(C). Moreover, unlike the family day care homes in Rush,

Plaintiffs have not alleged that FFLs operate according to 32 RICHARDS V. NEWSOM

normal business hours. To the contrary, Vandermeulen

operates “multiple enterprises” both online and “out of his home” and alleges that he sells firearms online “both inside and outside of California,” suggesting that he may operate in different time zones and is not limited to normal business hours in any one jurisdiction. Similarly, Richards alleges that his family “frequently visits him in the mornings and

evenings in [his combined] office/FFL space,” and that his “young children” visit him in “a partial state of dress before bed.”

Rush is further distinguishable because guns—and

therefore the risk of gun theft—are present on FFLs’

premises at all hours, meaning that “the need for regulatory compliance” is not “restricted to business hours.” Heffner, 745 F.3d at 69. The dissent concedes this fact,

acknowledging that “guns are always at home.” Dissent at 70. The dissent likewise concedes that firearm sales “could theoretically occur after hours.” Dissent at 71 n.11.

Nevertheless, the dissent attempts to distinguish our prior precedent upholding 24/7 inspection schemes based on a

purported lack of evidence in the record showing that afterhours sales are “the norm or routine.” Dissent at 71 n.11. But it is Plaintiffs’ burden to establish that Section 26806 is unconstitutional, and the only two home-based FFLs in this case fail to allege that they (or any other FFLs) operate according to normal business hours. Based on the allegations in the FAC, none of the rationales upon which we relied in Rush are applicable in this case. Accordingly, even under the dissent’s compliance inspection theory, Section 26806 is valid under Burger.

RICHARDS V. NEWSOM 33

c. As Applied Challenge to Section 26806

Lastly, to the extent the dissent challenges the

compliance inspections scheme as applied to the two homebased FFL Plaintiffs, Vandermeulen and Richards, Plaintiffs lack standing to assert such a challenge.

As an initial matter, neither Vandermeulen nor Richards

alleges that the state has conducted an inspection of his home of any kind, nor does the FAC contain any allegations

plausibly suggesting the state is likely to do so in the future. See Or. Prescription Drug Monitoring Program v. U.S.

Drug Enf’t Admin., 860 F.3d 1228, 1234-35 (9th Cir. 2017) (finding alleged injury speculative where intervenors failed to provide evidence that the government was seeking or will seek records related to them); cf. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163 (1967) (finding case not ripe for review where Court had “no idea whether or when such an

inspection will be ordered”). The dissent’s “theory of future injury”—that the state might search a home-based FFL

owner’s bedroom at any time, including on Christmas

morning—is not supported by any allegations in the FAC

and is thus far “too speculative” to state a claim for relief. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401, 410-14 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (holding that the plaintiffs’ speculation that the government might surveil their communications was

insufficient to demonstrate injury). 6

The dissent criticizes us for requiring Plaintiffs to plead their claims with “‘certainty’ rather than ‘plausibility.’” Dissent at 70 n.10. But Clapper makes clear that where, as here, the harm relies on some speculative future injury, the “threatened injury must be ‘certainly impending.’” 568 U.S. at 401.

34 RICHARDS V. NEWSOM

To be clear, nothing we have said today prevents an FFL

from challenging the reasonableness of a specific search under the Fourth Amendment in the future. We hold only

that the dissent’s contention that the state might conceivably conduct an unlawful search in the future is insufficient to support the dissent’s compliance inspection theory. We

therefore affirm the district court’s dismissal of Plaintiffs’ Fourth Amendment claim.

B. Fifth Amendment

We next turn to whether Section 26806 constitutes an

unconstitutional taking of private property under the Fifth Amendment. The Takings Clause of the Fifth Amendment

provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. 7 The Supreme Court has recognized two types of Fifth

Amendment takings: physical takings and regulatory

takings. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 321 (2002). A “per se” physical taking occurs “[w]hen the government physically takes

possession of an interest in property for some public

purpose.” Id. at 322. A regulatory taking, on the other hand, occurs when the government “imposes regulations that

restrict an owner’s ability to use his own property.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 148 (2021). The

Supreme Court has recognized a “fundamental distinction” between a per se physical taking and a regulatory taking. Tahoe-Sierra, 535 U.S. at 325. “The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and

The Takings Clause is incorporated against the states through the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980).

RICHARDS V. NEWSOM 35

economic effects of government actions.” Yee v. City of

Escondido, 503 U.S. 519, 523 (1992). 8

Plaintiffs assert that Section 26806 creates both a per se physical taking and a regulatory taking in violation of the Fifth Amendment. We reject both theories and hold that

Plaintiffs have failed to plausibly allege a Fifth Amendment claim. The dissent does not contend otherwise.

i. Per Se Physical Taking

Physical takings under the Fifth Amendment are

“relatively rare” and “easily identified.” Tahoe-Sierra, 535 U.S. at 324. “When the government physically takes

possession of an interest in property for some public

purpose, it has a categorical duty to compensate the former owner.” Id. at 322 (emphasis added); see also E. Enters. v. Apfel, 524 U.S. 498, 522 (1998) (noting that a “classic

taking” occurs when “the government directly appropriates private property for its own use” (citation modified)).

Plaintiffs contend that Section 26806 creates a per se

physical taking because the statute requires “the compelled installation and permanent operation of surveillance

equipment, at [FFLs’] expense, for the State’s benefit.” In Plaintiffs’ view, that alone constitutes a physical taking. 9

A third type of Fifth Amendment taking occurs when a challenged regulation “completely deprive[s] an owner of ‘all economically beneficial us[e]’ of her property.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005) (emphasis and second alteration in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)). However, Plaintiffs do not argue that a Lucas-style deprivation of all economically beneficial use of their property has occurred. 9

Plaintiffs emphasize that their physical taking argument is about the “state-mandated making of recordings,” not the “government’s eventual 36 RICHARDS V. NEWSOM

Plaintiffs rely on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and Cedar Point Nursery, 594 U.S. 139, to support this argument. Neither case, however, supports Plaintiffs’ physical taking theory.

In Loretto, the Supreme Court addressed the

constitutionality of a New York statute requiring building owners to allow cable television companies to install cables on their property. 458 U.S. at 421. The Court held in a “very narrow” decision that the “permanent physical occupation” of the building by a third party constituted a per se physical taking. Id. at 421, 441. The Court reasoned that “an owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property.” Id. at 436

(emphasis in original). However, the Court noted that the case “might present a different question” if the statute instead allowed plaintiffs to “own” and retain “full authority over the installation except only as [the] government

specifically limited that authority.” Id. at 440 n.19.

Section 26806 does not entail the “permanent physical

occupation” of FFLs’ property by the government, its agents, or any third party. Id. at 440. Nothing in the statute strips FFLs of their ownership of the recording equipment. See id. at 440 n.19. Nor does the statute state that the recording system must be installed by a third party, such that FFLs’ property is occupied “by a stranger.” Id. at 436. Instead, FFLs have full autonomy to “decide how to comply” with

Section 26806. Id. at 440 & n.19. FFLs may select what

recording equipment to use and the manner in which the

equipment will be installed. FFLs also exercise control over the placement of the recording system because FFLs may

access” to the recordings. Plaintiffs also explicitly reject a taking theory “based on retrieval of stored video recordings” by the government.

RICHARDS V. NEWSOM 37

choose “where firearms are displayed” and where the “points of sale” occur. Cal. Penal Code § 26806(a)(3)(B)-(C); see Loretto, 458 U.S. at 440 n.19. Thus, unlike the third-party cable company’s installation in Loretto, FFLs own and

install the recording system under Section 26806. In this way, Section 26806 is akin to regulations requiring

“mailboxes, smoke detectors, fire extinguishers, and the like,” which, as Loretto recognized, constitute

“nonpossessory governmental activity” and “do not require the [building owner] to suffer the physical occupation of a portion of his building by a third party.” Id. at 440.

Plaintiffs nevertheless claim that Section 26806 amounts to a physical taking under Loretto because the recording system exists “for the benefit of the government alone.” Even if this were true, the Supreme Court has long

disavowed looking to a statute’s “benefit” to determine

whether a per se physical taking has occurred. See Horne v. Dep’t of Agric., 576 U.S. 350, 360 (2015) (emphasizing that a physical taking occurs “without regard to the claimed

public benefit or the economic impact on the owner”);

Loretto, 458 U.S. at 434-35. To the extent that a statute’s “benefit” matters at all, it is relevant to the fact-intensive regulatory taking analysis. The physical takings inquiry, by contrast, simply asks whether private property has been

“actually occupied or taken away.” Horne, 576 U.S. at 361 (emphasis added). Neither is the case here. To decide

otherwise and find a physical taking based on an alleged “benefit” to the government would upend the “fundamental distinction” that the Supreme Court has drawn between

physical and regulatory takings. Tahoe-Sierra, 535 U.S. at 325.

Plaintiffs’ reliance on Cedar Point Nursery is also inapt. Cedar Point Nursery involved a California regulation that 38 RICHARDS V. NEWSOM

granted labor union organizers up to a three hour per day right of access to an agricultural employer’s property, 120 days a year. 594 U.S. at 143. The Court held that the access regulation effected a per se physical taking because the regulation “appropriate[d] a right to invade the growers’ property,” which was otherwise closed to the public. Id. at 149. Section 26806, by contrast, does not appropriate a

“right to invade” FFLs’ property because the FFLs’ business premises are already open to the general public. Id. “Once property owners ‘voluntarily open their property to

occupation by others,’ they ‘cannot assert a per se right to compensation based on their inability to exclude particular individuals.’” CDK Glob. LLC v. Brnovich, 16 F.4th 1266, 1282 (9th Cir. 2021) (quoting Yee, 503 U.S. at 531).

Section 26806 only applies to FFLs’ “business

premises,” Cal. Penal Code § 26806(a), and it is the FFLs who voluntarily decided to open their properties as

commercial enterprises accessible to the public. Indeed, the FAC alleges that FFLs are frequented by the “general

public” and “serve the same purpose as once served by 19thand early 20th-century General Stores, where Americans

gathered to discuss local and national issues.” As the

Supreme Court has acknowledged, the Fifth Amendment

physical taking inquiry simply does not fit when “a law

limit[s] a property owner’s right to exclude” from property that is “already publicly accessible.” Horne, 576 U.S. at 364. Under these circumstances, where FFLs have “voluntarily

open[ed] their property to occupation by others” as FFL

business premises, Plaintiffs cannot plausibly succeed on a per se physical taking theory. CDK Global, 16 F.4th at 1282 (quoting Yee, 503 U.S. at 531).

Because Plaintiffs fail to allege that the government

“acquires” or “physically takes possession of an interest” in

RICHARDS V. NEWSOM 39

FFLs’ property, Plaintiffs’ per se physical taking theory fails. Tahoe-Sierra, 535 U.S. at 321-22. We therefore turn to whether Section 26806 effects a regulatory taking.

ii. Regulatory Taking

When the government has allegedly “restricted a

property owner’s ability to use his own property, a court must evaluate the action under the three-factor test

announced in Penn Central Transportation Co. v. City of

New York, 438 U.S. 104 (1978), to determine whether it

constitutes a regulatory taking.” CDK Global, 16 F.4th at 1281 (citation modified). Under Penn Central, courts

generally consider three factors: (1) the regulation’s

interference with reasonable investment-backed expectations; (2) the economic impact of the regulation; and (3) the character of the government action. See 438 U.S. at 124. This analysis “aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, 544 U.S. at 539.

Analyzing Section 26806 under this framework, we

conclude that Section 26806 does not effect a regulatory taking in violation of the Fifth Amendment.

First, Section 26806 does not impermissibly interfere

with reasonable investment-backed expectations. “As a

general matter, ‘in the case of personal property, by reason of the State’s traditionally high degree of control over commercial dealings, [a property owner] ought to be aware of the possibility that new regulation might even render his property economically worthless.’” CDK Global, 16 F.4th at 1282 (alteration in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027-28 (1992)). That is

particularly true “in areas ‘that ha[ve] long been the source 40 RICHARDS V. NEWSOM

of public concern and the subject of government

regulation.’” Pharm. Rsch. & Mfrs. of Am. v. Stolfi, 153 F.4th 795, 835 (9th Cir. 2025) (alteration in original)

(quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1007 (1984)). As Plaintiffs concede, FFLs operate in an industry with a long history of government regulation. See Biswell, 406 U.S. at 316. Because FFLs chose to enter a highly

regulated industry, they “cannot reasonably expect that

[their] property will be continually unencumbered by

government regulation.” Rancho de Calistoga v. City of

Calistoga, 800 F.3d 1083, 1090 (9th Cir. 2015). We thus

conclude that this factor does not support Plaintiffs’

regulatory taking theory.

Second, the economic impact of Section 26806 does not

“unreasonably impair the value or use of [FFLs’]

property.” PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980). The relevant test requires that we “compare the value that has been taken from the property with the value that remains in the property.” Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th Cir. 2018) (quoting Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)). “[T]he severity of the loss can be

determined only by comparing the post-deprivation value to pre-deprivation value.” Id. (emphasis added). Supreme

Court precedent indicates that this is a high threshold to meet. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 645 (1993). Accordingly, we have observed that “diminution in property value because of governmental regulation ranging from 75% to 92.5% does not constitute a taking.” Colony Cove, 888 F.3d at 451.

Plaintiffs have failed to allege a comparison of the preand post-deprivation values of FFLs’ property under Section

RICHARDS V. NEWSOM 41

26806, as required. Plaintiffs contend that Section 26806 amounts to a regulatory taking because the compliance costs (approximately $17,058.32) are “substantial and

unrecoverable.” However, we have never held that

compliance costs, without more, are sufficient under the Penn Central analysis. See Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1225 (9th Cir. 2018) (“[S]imply show[ing] that the Plaintiffs operate at a loss” by complying with a statute “tells us nothing about the overall economic impact of [the statute].”); Colony Cove, 888 F.3d at 451 (“[T]he mere loss of some income because of regulation does not

itself establish a taking.”). Nor do Plaintiffs offer any reason to do so here. We thus conclude that this factor also does not support Plaintiffs’ regulatory taking theory.

Third, the character of the government action does not

weigh in favor of Plaintiffs. Under the third Penn Central factor, a regulatory taking is more likely to have occurred “when the interference with property can be characterized as a physical invasion by government,” as compared to “when interference arises from some public program adjusting the benefits and burdens of economic life to promote the

common good.” 438 U.S. at 124. However, “[e]ven if this

factor weighs in favor of finding a taking, this factor is not alone a sufficient basis to find that a taking

occurred.” Bridge Aina Le‘a, LLC v. Land Use Comm’n, 950 F.3d 610, 636 (9th Cir. 2020).

Here, Plaintiffs have failed to provide any nonconclusory allegations that Section 26806 is akin to a “physical

invasion” of FFLs’ property by the state, rather than a policy to “promote the common good.” Penn Central, 438 U.S. at

124. As the district court correctly observed, the FAC

contains only “conclusory allegations that the government action is a ‘government eavesdropping device’ and a

42 RICHARDS V. NEWSOM

‘Bentham’s Panopticon’ intended only to ‘target,

marginalize, and drive from the market dissenters wishing to exercise the right to keep and bear arms’” (citation

modified). These exaggerated claims do not provide any

plausible basis for concluding that the state’s actions “can be characterized as a physical invasion.” Id.

To the extent that Plaintiffs allege that Section 26806

does not promote the common good because it serves no

public purpose, we have explained that such a rationale “is not ‘an independent means to challenge an alleged

regulatory taking.’” CDK Global, 16 F.4th at 1283 (quoting Rancho de Calistoga, 800 F.3d at 1092). The California

Legislature determined that enacting Section 26806 would promote the common good by aiding law enforcement in

combatting and deterring firearms trafficking, theft, straw purchases, and other gun crimes. Plaintiffs have given us no reason to question that judgment. See id. (finding “no basis to question” the legislature’s judgment when plaintiff failed to demonstrate that the challenged law did not serve a public purpose).

Because none of the three Penn Central factors weigh in

Plaintiffs’ favor, we conclude that Section 26806 does not constitute a regulatory taking. Accordingly, Plaintiffs have failed to plausibly allege a Fifth Amendment claim.

C. First Amendment

We turn lastly to Plaintiffs’ First Amendment claim. The First Amendment prohibits the government from “abridging

RICHARDS V. NEWSOM 43

the freedom of speech . . . or the right of the people peaceably to assemble.” U.S. Const. amend. I. 10

Plaintiffs claim that Section 26806 infringes upon these rights. Their overarching theory is that by requiring FFLs to install and operate a recording system, Section 26806 chills expression and deters political association among

individuals who hold pro-gun rights views. Plaintiffs frame this argument under several different legal theories,

specifically, that Section 26806: (1) is overbroad;

(2) violates the right to anonymity; (3) violates the right to free association; and (4) chills speech. For the reasons explained below, we hold that none of Plaintiffs’ theories plausibly allege a First Amendment violation.

The dissent does not disagree that Plaintiffs’ First

Amendment theories fail to state a claim. Instead, the dissent posits its own, novel First Amendment theory based on the “right to receive and exchange information.” Dissent at 67 n.8. We reject the dissent’s theory for the reasons explained below.

i. Overbreadth

To succeed on a First Amendment overbreadth

challenge, a plaintiff must show that “a law punishes a

substantial amount of protected free speech, judged in

relation to the statute’s plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19 (2003) (citation modified). The Supreme Court has thus observed that “[r]arely, if ever, will an overbreadth challenge succeed against a law or

The First Amendment applies to the states under the Fourteenth Amendment. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996).

44 RICHARDS V. NEWSOM

regulation that is not specifically addressed to speech or to conduct necessarily associated with speech.” Id. at 124.

Here, Plaintiffs’ overbreadth challenge is premised on

the theory that Section 26806 mandates a sweeping

surveillance regime that captures an impermissibly vast

amount of protected speech. This challenge fails because Plaintiffs have not alleged any facts showing that Section 26806 punishes or otherwise regulates “speech or . . .

conduct necessarily associated with speech.” Id. Plaintiffs’ overbreadth challenge rests on a single allegation that

“Section 26806 is unconstitutionally overbroad because, in an effort to ‘catch a criminal,’ the law seriously and

deliberately burdens a vast amount of speech that does not constitute such a communication and is fully protected by the First Amendment.” This allegation is a “legal conclusion couched as a factual allegation” that we are not bound to accept. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Unlike the cases in which the Supreme Court has found

laws to be overbroad, Section 26806 does not dictate the type of speech that is permissible (for instance, by restricting what Plaintiffs are allowed to say inside an FFL’s premises). See, e.g., United States v. Stevens, 559 U.S. 460, 474-77 (2010) (finding a law prohibiting depictions of animal

cruelty overbroad because it punished otherwise lawful

images such as images of hunting). Rather, Section 26806 merely requires FFLs to install recording systems

monitoring gun transactions to deter and combat firearm

theft and straw purchases. Plaintiffs cite no authority for the assertion that a regulation requiring recording in a business, standing alone, constitutes a regulation of speech.

RICHARDS V. NEWSOM 45

Because Plaintiffs failed to plausibly allege that Section 26806 regulates speech at all, Plaintiffs have not adequately alleged that the law regulates substantially more speech than is permissible. Therefore, the district court correctly rejected Plaintiffs’ overbreadth challenge.

ii. Right to Anonymity

Plaintiffs also claim that Section 26806 violates the First Amendment right to speak anonymously. This theory is

premised on Plaintiffs’ assertion that FFL owners and their visitors will have their identities disclosed to the government as a result of Section 26806’s recording requirement.

“[A]n author’s decision to remain anonymous, like other

decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech

protected by the First Amendment.” McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334, 342 (1995). To plausibly allege a violation of the right to anonymous speech, the speech at issue must necessarily be anonymous, as in the case of unsigned handbills or publications under a

pseudonym. See id. at 341-42 & n.4; Doe v. Reed, 586 F.3d 671, 677 (9th Cir. 2009) (holding that anonymous speech

cases do not apply to petition signatures because petition signatures are not anonymous), aff’d, 561 U.S. 186 (2010). The Supreme Court has thus found violations of the right to anonymity when the law compels or requires the disclosure of one’s identity in public conversations, such as through identification badges. See Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 197-200 (1999) (holding that a law

requiring petition circulators to wear name badges violated right to anonymity).

Plaintiffs’ right to anonymity theory fails because

nothing in Section 26806 requires FFL visitors or owners to 46 RICHARDS V. NEWSOM

disclose their names or other identifying information.

Plaintiffs allege that they desire to engage in face-to-face conversations in gun stores, where there are “numerous

customers and visitors . . . at any given time.” Specifically, Plaintiffs allege that they wish to engage in “anonymous discourse about political matters,” including “potential government legislation, executive actions related to

firearms, current events, firearm activities such as firearms training and target shooting, and other firearms-related news and issues.” But Plaintiffs do not explain how Section 26806 in any way interferes with their ability to engage in

“anonymous discourse” about these topics. Section 26806

does not, for instance, require FFL visitors to present

identification before entering a gun store, wear name badges while in the store, or identify themselves when speaking in the store. Cf. id. (statute requiring name badges violated right to anonymity). Thus, to the extent Plaintiffs engage in

anonymous conversations inside gun stores, Plaintiffs may continue to do so.

Furthermore, to the extent Plaintiffs share their names in a gun store, the voluntary disclosure of Plaintiffs’ identity in a commercial business open to the public means that

Plaintiffs’ speech is no longer anonymous. Such voluntary disclosure therefore cannot support a claim for violation of the right to anonymous speech. See Doe, 586 F.3d at 677

(holding that anonymous speech doctrine does not apply to petition signatures made voluntarily, in public, and viewed by other signers).

iii. Right to Free Association

Plaintiffs assert a similar theory in support of their

argument that Section 26806 violates the right to free

association. According to Plaintiffs, members of the

RICHARDS V. NEWSOM 47

Organization Plaintiffs will effectively be forced to disclose their membership to the government because Section 26806 will result in recordings of these organizations’ recruitment efforts at gun shops. This theory fails for the same reason that Plaintiffs’ right to anonymity theory fails—because Section 26806 does not mandate any forced disclosure at all.

The Supreme Court has recognized “a right to associate

for the purpose of engaging in those activities protected by the First Amendment.” Roberts v. U.S. Jaycees, 468 U.S.

609, 618 (1984). Accordingly, “compelled disclosure of

affiliation with groups engaged in advocacy may constitute an effective restraint on freedom of association.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (citation

modified); see also First Choice Women’s Res. Ctrs., Inc. v. Davenport, 146 S. Ct. 1114, 1123-24 (2026) (collecting

cases where the state “demanded private donor or member

information”).

As discussed above, Section 26806 does not require the

disclosure of individual FFL customers’ identities. For the same reason, the statute also does not require the disclosure of one’s membership in any organization. To the extent

Plaintiffs might choose to disclose their own membership in an organization in a publicly open place of business, such disclosure is voluntary and not the kind of compulsory

disclosure prohibited under the First Amendment. See Bates, 361 U.S. at 523.

iv. Speech Chilling

Finally, Plaintiffs contend that by requiring FFLs to

install a recording system in their places of business, Section 26806 will impermissibly chill speech. Plaintiffs

acknowledge that their chilling theory is not premised on any actual retaliation or adverse action by the state. Plaintiffs 48 RICHARDS V. NEWSOM

instead argue that the mere fact of a 24/7 recording scheme will “inevitably” chill the speech of pro-gun rights

advocates.

To bring a claim alleging that Section 26806 was enacted to “retaliate against, obstruct, or chill the [P]laintiff’s First Amendment rights,” Plaintiffs “must allege that (1) [they] engaged in constitutionally protected activity; (2) the

defendant’s actions would chill a person of ordinary

firmness from continuing to engage in the protected activity; and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (citation modified); see also Dissent at 67 n.8 (acknowledging that a “‘chilling’ effect argument typically involves a threat of reprisal by the

government”). “Whether [a plaintiff] himself was, or would have been, chilled is not the test.” O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016). Instead, the test for whether a person of ordinary firmness would be chilled is “generic and objective.” Id. For that reason, we have never found a statute invalid based solely upon assertions that the statute will have a subjective chilling effect on speech.

As an initial matter, Plaintiffs have not plausibly alleged that the government will take any affirmative, adverse action against them for engaging in their protected speech. In the FAC, Plaintiffs claim that Section 26806 is part of

California’s “open declaration of war on the Second

Amendment,” and vaguely suggest that Section 26806 might be used to “squelch ‘political debate’ and enable ‘official retaliation’ against critics.” However, Plaintiffs do not offer any concrete allegations to support these conclusory

assertions. Plaintiffs merely state that “it is probable (if not

RICHARDS V. NEWSOM 49

certain) that” Section 26806’s recording scheme will capture conversations “criticizing . . . powerful California politicians who openly oppose the right to keep and bear arms,” and that these conversations will “be recorded and accessible to government investigators (by the same

department that makes determinations as to who may carry a firearm).” Such allegations, even construed in the light most favorable to Plaintiffs, fail to identify any actual harm that any individual might suffer as a result of their exercise of their protected speech rights.

Absent any concrete allegations of harm, Plaintiffs’

theory is ultimately that their speech will be suppressed by the mere knowledge that FFLs are required to maintain a

recording system, coupled with Plaintiffs’ subjective fear that the state might at some point access those recordings and misuse them in some unspecified way. The U.S. Supreme

Court squarely rejected that such speculative fears are

sufficient to support a First Amendment claim premised on a purported chilling effect. In Laird v. Tatum, the Supreme Court considered a First Amendment challenge to the

Army’s alleged “surveillance of lawful and peaceful civilian political activity,” including public meetings of certain organizations. 408 U.S. 1, 2, 6 (1972). Similar to Plaintiffs here, the plaintiffs in Laird did not complain of any “specific action of the Army against them” but instead alleged that their First Amendment rights were “chilled by the mere

existence, without more, of a governmental investigative and data-gathering activity.” Id. at 9-10 (citation omitted).

The Supreme Court held that the plaintiffs failed to

demonstrate a judicially cognizable injury. Id. at 15. In reaching that conclusion, the Court rejected the notion that a First Amendment claim alleging a chilling effect may “arise merely from the individual’s knowledge that a governmental 50 RICHARDS V. NEWSOM

agency was engaged in certain activities or from the

individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id. at 11. Because the plaintiffs alleged only a “speculative apprehensiveness that the Army may at some future date

misuse the information in some way that would cause direct harm to” them, the plaintiffs’ assertions of “subjective ‘chill’” were inadequate. Id. at 13-14.

The Supreme Court reaffirmed the holding of Laird in

Clapper v. Amnesty International USA, 568 U.S. 398 (2013), another case involving a constitutional challenge to a statute authorizing government surveillance. In finding that the plaintiffs lacked standing to assert their First Amendment challenge, the Clapper Court reiterated that “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. at 418 (alteration in original) (quoting Laird, 408 U.S. at 13-14). 11

The dissent attempts to distinguish Laird and Clapper on the grounds that those cases turned on the plaintiffs’ failure to demonstrate that “the government was in fact surveilling them.” Dissent at 66 n.7. But Laird’s rejection of the

Although Laird and Clapper addressed standing, they are informative of what is required for a First Amendment violation because “harms specified by the Constitution itself,” including the “abridgment of free speech,” constitute cognizable injuries for standing purposes. TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). The Court in Laird and Clapper found that subjective apprehension was insufficient for standing and instead required allegations of government misuse and retaliation. Thus, subjective apprehension alone does not constitute a First Amendment violation. If it did, the plaintiffs in Laird and Clapper would have adequately alleged an injury.

RICHARDS V. NEWSOM 51

plaintiffs’ First Amendment claim turned on the fact that the plaintiffs had alleged only “speculative apprehensiveness that the Army may at some future date misuse the

information in some way that would cause [them] direct

harm.” 408 U.S. at 13 (emphasis added). Laird reached this conclusion even though the plaintiffs alleged that the Army’s surveillance program targeted “lawful and peaceful civilian political activity,” id. at 2, 6, including groups such as the Southern Christian Leadership Conference and the

American Civil Liberties Union, id. at 24-25 (Douglas, J., dissenting). Clapper similarly stressed that claims relying on a fear that the government “might in the future take

some other and additional action detrimental to that

individual” do not support a chilling effect claim. Clapper, 568 U.S. at 417-18 (emphasis in original) (quoting Laird, 408 U.S. at 11).

Here, as in Laird and Clapper, Plaintiffs have failed to allege any “present objective harm or a threat of specific future harm” to support their speech chilling theory. Laird, 408 U.S. at 13-14. Plaintiffs’ theory instead hinges on

Plaintiffs’ “speculative apprehensiveness” that the state will both acquire FFLs’ recordings and misuse those recordings in some way that is detrimental to Plaintiffs. Id. As both Laird and Clapper make clear, such allegations are

insufficient. See id.; Clapper, 568 U.S. at 418.

Indeed, any theory of government retaliation against

Second Amendment activists requires the Court to assume

that the state will ignore the express restrictions that Section 26806 places on the state’s ability to access an FFL’s

recordings in the first place. The dissent speculates that the state might “watch[] and listen[] to hours of the recorded interactions . . . under the guise of making sure the

videorecording system works,” Dissent at 64-65, but that 52 RICHARDS V. NEWSOM

concern finds no support in the text of Section 26806.

Subsection (b)(1) makes clear that an FFL “shall allow

access to the system to [a government] agent” only “for the purpose of inspecting the system for compliance with this section, and only if a warrant or court order would not

generally be required for that access.” Cal. Penal Code

§ 26806(b)(1). The dissent does not explain how a provision limiting access to inspection “for the purpose of inspecting the system for compliance” could plausibly be construed as permitting state agents to watch footage for hours on end. Id. The only conceivable way the state could obtain such

unrestricted access to recordings is under subsection (b)(2), but that subsection requires that the state first obtain a warrant or court order. See Cal. Penal Code § 26806(b)(2). Plaintiffs have not alleged any basis for inferring that the state will obtain and misuse recordings in violation of these express provisions.

In sum, because Plaintiffs have not pleaded facts that

would lead a person of ordinary firmness to fear adverse action from the government pursuant to the limited access authorized by Section 26806(b), their speech chilling theory fails. The district court did not err in dismissing Plaintiffs’ First Amendment claim.

v. Right to Receive Information

The dissent does not dispute that Plaintiffs’ First

Amendment theories regarding overbreadth, the right to

anonymity, the right to free association, and the chilling of speech fail at the pleading stage. Rather than defend these theories, the dissent contends that Plaintiffs’ First

Amendment claim is “better understood as a right to receive and exchange information.” Dissent at 67 n.8. According to the dissent, Section 26806 violates this First Amendment

RICHARDS V. NEWSOM 53

right because the statute “burdens both the listener and the speaker’s ability to receive and exchange information” and restricts “the free flow of ideas.” Dissent at 65-67. 12 In other words, the dissent’s view is that the mere fact that Section 26806 might indirectly affect the free flow of information is sufficient to establish a First Amendment violation. We

decline to adopt this theory for two reasons.

First, Plaintiffs themselves have not raised this theory. Nowhere in the FAC or Plaintiffs’ briefing on appeal did Plaintiffs argue Section 26806 violates the right to receive and exchange information. Nor did Plaintiffs cite any of the cases on which the dissent relies to support its theory. The dissent itself acknowledges as much, noting that Plaintiffs “characterized their First Amendment claim slightly

differently.” Dissent at 67 n.8. Given that neither the district court nor the state has had an opportunity to address the

Although the dissent acknowledges that video recording will aid law enforcement in combatting gun-related crime, Dissent at 57-58, the dissent asserts that there is “no plausible law enforcement rationale” for Section 26806’s audio recording requirement. Dissent at 63. The dissent provides no support for this assumption. Audio recordings may be useful to law enforcement in a variety of ways. For example, audio recordings may be used to determine whether a gun purchase was in fact a straw transaction, to identify the actual purchaser or transferee, or to help prosecutors prove in court that the purchaser and/or FFL possessed the relevant intent. See, e.g., 18 U.S.C. § 922(a)(6) (making it unlawful to “knowingly . . . make any false or fictitious oral or written statement . . . intended or likely to deceive” an FFL in connection with a firearm acquisition (emphases added)); 18 U.S.C. § 932(b); Cal. Penal Code § 27515. The dissent dismisses the usefulness of audio recordings by relying on the fact that all firearm purchasers must check a box stating that they are “the actual transferee/buyer.” See Dissent at 63 n.2. But the very nature of straw purchases means that the identity of the actual transferee/buyer will not be discernible from official documentation alone.

54 RICHARDS V. NEWSOM

dissent’s novel theory, it is inappropriate for us to decide the issue ourselves in the first instance. To do so would violate the party presentation principle, according to which “we rely on the parties to frame the issues for decision.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (citation

modified); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).

Second, even putting that issue aside, none of the cases cited by the dissent support the dissent’s assertion that Section 26806 violates a First Amendment right to receive and exchange information. Rather, in each of those cases, the government prohibited the exchange of certain information between willing speakers and receivers.

The dissent first relies upon Lamont v. Postmaster

General of the United States, in which the Supreme Court considered a challenge to a federal law requiring the

Postmaster General to notify the addressee of any mail

determined to be communist political propaganda printed or otherwise prepared in a foreign country. 381 U.S. 301, 302-05 (1965). The law allowed the Postmaster General to

deliver the mail only if the addressee returned a “reply card” attached to the notice within 20 days. Id. at 303. The Court concluded that the statute was “unconstitutional because it requires an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee[’]s First Amendment rights.” Id. at 305. In so holding, the Court stressed that its decision “rest[ed] on the narrow ground that the addressee in order to receive his mail” was required to take the affirmative act of “request[ing] in writing that it be delivered.” Id. at 307. Section 26806, by contrast, does not impose an “affirmative obligation” of any kind on

RICHARDS V. NEWSOM 55

individuals seeking to give or receive information. Id. As explained above, Section 26806 does not prohibit any FFL or gun store patron from engaging in any kind of speech, nor does it require that individuals who wish to receive such information take any steps before exercising their First Amendment right to do so.

The dissent’s reliance on Pacific Coast Horseshoeing

School, Inc. v. Kirchmeyer (“Horseshoeing”), 961 F.3d 1062 (9th Cir. 2020), is similarly unavailing. There, we addressed a California statute that prohibited private, for-profit postsecondary institutions from teaching some courses to some listeners, depending on the identity of the listener and the content of the course. Id. at 1073. Because the law

“distinguishe[d] between speakers” and “engage[d] in

content discrimination,” we concluded that the law’s

prohibition on teaching certain courses did “more than

merely impose an incidental burden on speech” and plainly implicated the First Amendment. Id. at 1070-73. Here, by contrast, Section 26806 merely requires that private

businesses maintain a recording system but does not

discriminate based on content or speaker.

Finally, Martin v. City of Struthers involved a challenge to a city ordinance prohibiting any person distributing

literature or leaflets door-to-door from ringing the doorbell. 319 U.S. 141, 141-42 (1943). The Supreme Court concluded that this “stringent prohibition” on the distribution of literature served no purposes other than “the naked

restriction of the dissemination of ideas,” and thus, the ordinance directly infringed on the “[f]reedom to distribute information to every citizen wherever he desires to receive it.” Id. at 146-47. Again, Section 26806 bears no

resemblance to the law at issue in Martin because Section 56 RICHARDS V. NEWSOM

26806 does not prohibit anyone from sharing

information with willing recipients.

The dissent insists that what mattered in Lamont,

Horseshoeing, and Martin was that “the free flow of

information [was] restricted,” not “how.” Dissent at 65. But the Supreme Court in Laird explicitly rejected the view that the existence of any deterrent effect is enough to support a First Amendment claim, irrespective of how the law

operates. Rather, the Court in Laird cited several cases in which the Supreme Court has found a First Amendment

violation based on a law’s deterrent effect, and noted that in each case, “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively

subject to the regulations, proscriptions, or compulsions that he was challenging.” Laird, 408 U.S. at 11. The Court

specifically distinguished Lamont on this basis, noting that the law at issue in Lamont imposed an “affirmative

obligation” on the addressee in order to receive his mail. Id. at 12 (quoting Lamont, 381 U.S. at 307). Laird thus

contradicts the dissent’s theory that the mere impedance of the free flow of information, standing alone, is sufficient to establish a First Amendment violation, and the dissent cites no case to the contrary.

Accordingly, we affirm the district court’s dismissal of Plaintiffs’ First Amendment claim.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs have failed to state a claim that Section 26806 violates the First, Fourth, or Fifth Amendments, and the district court did not err in granting the Attorney General’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

RICHARDS V. NEWSOM 57

AFFIRMED.

LEE, Circuit Judge, dissenting in part:

In recent years, California has enacted a series of laws restricting the people’s ownership and use of firearms. Many have been found to violate the Second Amendment by threejudge panels of this court. 1 And now the First and Fourth Amendments are at risk, too, at the hands of California’s state government.

Governor Gavin Newsom signed a bill that mandates

constant audio and video surveillance—twenty-four hours a day, seven days a week—of brick-and-mortar Federal

Firearm License dealers (FFLs) and home-based FFLs. Cal. Penal Code § 26806. The majority (and the state) justify this

See, e.g., Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025) (striking down California’s “one gun a month” law); Wolford v. Lopez, 116 F.4th 959 (9th Cir. 2024), (affirming preliminary injunction of a portion of California law banning firearms in certain “sensitive” places), rev’d, Wolford v. Lopez, No. 24-1045, 609 U.S. __(2026). Numerous other three-judge panel decisions have found other California laws to be unconstitutional, but the Ninth Circuit has a tradition and history of calling en banc decisions that vindicate the Second Amendment. See, e.g., Baird v. Bonta, 163 F.4th 723 (9th Cir. 2026) (ruling California ban on open carry of guns in larger counties as unconstitutional), vacated by No. 24-565, 2026 WL 1021186 (9th Cir. Apr. 15, 2026); Rhode v. Bonta, 145 F.4th 1090 (9th Cir. 2025) (invalidating California background check for ammunitions), vacated by 159 F.4th 1170 (9th Cir. 2025); Duncan v. Bonta, 970 F.3d 1133 (9th Cir. 2020) (striking down California’s so-called “large capacity magazine” ban), vacated by 988 F.3d 1209 (9th Cir. 2021), and on reh'g en banc sub nom. Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021), cert. granted, judgment vacated, 142 S. Ct. 2895 (2022), and vacated and remanded, 49 F.4th 1228 (9th Cir. 2022).

58 RICHARDS V. NEWSOM

intrusive law, claiming that videotaped interactions can help identify suspects in thefts and illegal straw purchases. Fair enough. But there is no rational reason to audiotape every single conversation between a firearms dealer and a potential customer. Audio-recording of conversations at a gun store will not help law enforcement nab a thief. This never-ending surveillance, however, will have an insidious impact on the First Amendment. As the plaintiffs explain, gun stores are a hub of political activism where owners and patrons discuss their Second Amendment rights and their involvement in

political activities. California’s surveillance law, however, will likely impede the exchange of this core First

Amendment speech because people are wary of speaking

freely if they know that they are being audiotaped, especially if the government may potentially listen to these

conversations up to a year later. The First Amendment

shrivels under the constant surveillance of even a benevolent Big Brother.

The law also authorizes warrantless inspections of the

audio/visual-recording system for even home-based FFLs

with no limitations on the timing or location of the search. Under the law, government agents can enter a home-based

FFL at any time on any given day just to see if the recording system works. A governmental compliance search can occur at 2 a.m. or on Christmas Day, despite the lack of any

urgency. Our court struck down a similar inspection law for at-home childcare centers because it lacked such limitations. We should invalidate this law as well because Californians should not face unannounced and warrantless searches at the whim of the government.

California’s surveillance law is unprecedented in its

sweeping and shocking scope. Neither the federal

government nor the other 49 states have ever enacted such

RICHARDS V. NEWSOM 59

an intrusive audio-recording requirement for any business activity. The surveillance statute goes far beyond ensuring public safety and violates the First and Fourth Amendments. I respectfully dissent in part.

* * * *

California Governor Gavin Newsom signed Senate Bill

1384 (Min), adding Section 26806 to the California Penal Code. S. B. 1384, 2021-2022 Reg. Sess. (Cal. 2022). Starting January 1, 2024, an FFL must have a “digital video

surveillance system” that “continuously record[s] 24 hours per day” both “images” and “audio.” Cal. Penal Code

§ 26806(a)(1),(4). The surveillance must cover all “[i]nterior views of all entries or exits,” “[a]ll areas where firearms are displayed,” and “[a]ll points of sale, sufficient to identify the parties involved in the transaction.” Id.at (a)(3). The law also requires a sign “in a conspicuous place at each entrance to the premises that states in block letters not less than one inch in height: ‘THESE PREMISES ARE UNDER VIDEO AND

AUDIO SURVEILLANCE. YOUR IMAGE AND

CONVERSATIONS MAY BE RECORDED.’” Id. at (c).

These audio-visual recordings must be maintained for at

least one year. Id. at (a)(6). An FFL must turn over these recordings to the government if it obtains a warrant or a court order. Id. at (b)(2). An FFL also “shall allow access to the [recording] system to an agent of the department or a

licensing authority conducting an inspection of the

licensee’s premises, for the purpose of inspecting the system for compliance with this section, and only if a warrant or court order would not generally be required for that access.” Id. at (b)(1). And because the statute has no limitations or guidelines for these compliance inspections, nothing

presumably would stop a government agent from watching

60 RICHARDS V. NEWSOM

these recorded interactions—perhaps even hours of these

tapes—ostensibly to verify that the audio-videorecording system works.

The plaintiffs—both brick-and-mortar and home-based

FFLs as well as private citizens and public interest groups— sued and asked for a preliminary injunction. The district court denied it and then later dismissed the complaint. The majority opinion affirms the dismissal, holding that there are no First or Fourth Amendment violations. I respectfully

disagree.

DISCUSSION

I. California’s surveillance law violates the First

Amendment right to receive information because

continuous audio surveillance inhibits exchange of

core political speech.

“The First Amendment protects speech for the sake of

both the speaker and the recipient.” Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 743 (9th Cir. 2021); see Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (the First Amendment “embraces the right to distribute literature, and necessarily protects the right to receive it”). As we have held, the “Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Thunder Studios, Inc., 13 F.4th at 743 (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969)).

This “right to information” is implicated when the

government burdens the free exchange of ideas that is central to the First Amendment. For example, in Lamont v.

Postmaster Gen. of U. S., the Supreme Court held that a

requirement to return a reply card to receive communist mail

RICHARDS V. NEWSOM 61

violated the First Amendment because it imposed a

“limitation on the unfettered exercise of the addressees’ First Amendment rights.” 381 U.S. 301, 305 (1965). Even though no evidence showed that a particular person would face

retaliation for receiving communist materials, it was enough that the “deterrent effect” would erode “‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.” Id. at 307 (citation omitted).

More recently in our circuit, we extended the contours of the right to receive information and held that even a state law selectively requiring an entrance exam for only certain types of private postsecondary schools may implicate the First Amendment’s right to information. Pac. Coast

Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062,

1066–69 (9th Cir. 2020). In that case, one plaintiff ran a horseshoeing business, and another plaintiff wanted to

attend it but had to take a state-mandated exam. Id. at 1067. We concluded that the California law “implicates the First Amendment by restricting the rights of both speakers [] and would-be listeners []” because an “individual’s right to speak is implicated when information he or she possesses is

subjected to ‘restraints on the way in which the information might be used’ or disseminated.” Id. at 1069–70 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)).

Here, the 24/7 audio surveillance of every conversation

at a FFL location burdens the First Amendment because it hampers the ability of the plaintiffs to share and receive political information—which is at the core of the First

Amendment. Id. at 305. As the complaint alleges, gun

retailers are places of robust political discussion. It describes the “associative experience” of gun shops and gun shows as places where politically charged information is shared and acquired. An individual plaintiff alleged that he would

62 RICHARDS V. NEWSOM

“continue attending, informing, teaching, and participating in gun shows and gun shop events” “[b]ut for” California’s law, which “prevents [him] from freely communicating with FFLs as to ongoing [political matters] for fear of being recorded by the government.” Gun rights organization

plaintiffs similarly alleged that Section 26806 “will harm [their] ability to disseminate their message and communicate with gun owners.”

We must accept these allegations of inhibition of

information exchange as true at the pleading stage. Common sense supports it, too. Before patrons enter a gun store, they are confronted with a prominent government-mandated sign that tells them that “THESE PREMISES ARE UNDER

VIDEO AND AUDIO SURVEILLANCE” and that their

“CONVERSATIONS MAY BE RECORDED.” Cal. Penal

Code § 26806(c). The knowledge that every word uttered

will be captured—and saved for at least a year at the

government’s behest—will almost certainly inhibit political discussion. Cf. Project Veritas v. Schmidt, 125 F. 4th 929, 953 (9th Cir. 2025) (en banc) (“In a world where one knows that any conversation can be secretly recorded at any

time . . . it is easy to imagine that there might be a

deleterious effect on the ‘uninhibited exchange of ideas.’”).

It is no stretch to conclude that gun retailers and citizens will be less likely to share information about the Second Amendment or engage in political discussion, knowing that the government—which has enacted a slew of laws

criminalizing ownership of many firearms—has mandated

24/7 audio-recording of every conversation. Even in our

profession, we recognize that people will not speak freely if they believe that someone else may later hear their

conversations. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108 (2009) (“[A]ssuring confidentiality . . .

RICHARDS V. NEWSOM 63

encourages clients to make ‘full and frank’ disclosures to their attorneys.”). Simply put, the plaintiffs have plausibly alleged that California’s law stems “the flow of ideas to the public” and thus offends the First Amendment. Lamont, 381 U.S. at 306.

California’s surveillance law is particularly troubling

because there is no plausible law enforcement rationale for audio-recording every conversation at gun stores. The

majority points out that the state justifies this law by claiming that it will help solve gun thefts and illegal straw purchases. True enough, video-recording may help identify criminal suspects—but audio-recording almost certainly

does not. There is a reason why law enforcement circulates images or videoclips of suspects, not voice recordings of them. A gun thief will be identified because of his physical appearance, not because of his silky or sexy baritone voice. Likewise for illegal straw gun purchases, suspects will be identified by visual images and the false paperwork they submitted to the FFL. The majority insists that audiorecordings also “may be useful to law enforcement” by

offering only far-fetched hypotheticals or vague assertions. 2

The majority says, for example, that an audio-recording could help “determine whether a gun purchase was in fact a straw transaction.” But a straw transaction charge would be based on a false federal Firearm Transaction Record that must be filled out for a gun purchase. See Bureau of Alcohol, Tobacco, Firearms, and Explosives, ATF Form 4473, https://www.atf.gov/media/18646/download [https://perma.cc/WTX2-4H5T] (last visited July 30, 2026). A firearm purchaser must sign the form and certify by checking “yes” that he or she “is the actual transferee/buyer,” and the form warns that “you are not the actual transferee/buyer if you are acquiring any of the firearm(s) on behalf of another person.” Id. at 1. Ultimately, the majority’s position is that if a piece of evidence can possibly be useful, then governmental intrusion is 64 RICHARDS V. NEWSOM

Notably, neither the government nor the amici offered any example of law enforcement capturing or prosecuting a

suspect for straw gun purchases or gun thefts based on audio evidence.

The lack of a plausible public safety reason for the 24/7 audio-recording leads to the uncomfortable conclusion that the real rationale may be to dry up the free flow of ideas deemed unpopular by the state government. The California governor’s public remarks offer us little assurance. He has called non-profit groups that exercise their First Amendment rights to advocate for the Second Amendment “merchants of death.” 3 The governor has even demonized a federal district court judge who invalidated a California firearm law as

“writ[ing] a love letter to the gun lobby” and being “hellbent on making it more dangerous for our kids to go to school.” 4 Regardless of the governor’s remarks, the scope of this

surveillance law is so stunning that it naturally raises suspicions. Indeed, there is no law in the books of any state that mandates such intrusive audio-recording for any

business, whether it be banks or marijuana dispensaries. The statute is so broad with so few limitations that nothing

justified. But that has no limiting principle because any evidence in the abstract can hypothetically be helpful.

ENDING GUN VIOLENCE IN AMERICA: What They Are Saying

About Governor Newsom’s Historic 28th Amendment Proposal, Governor Gavin Newsom, https://www.gov.ca.gov/2023/06/12/28thwtas/ [https://perma.cc/C4VU-SGK4] (last visited July 26, 2026). 4

Governor Newsom Statement on U.S. District Court Decision Invalidating California’s Assault Weapons Ban, Governor Gavin Newsom, https://www.gov.ca.gov/2023/10/19/governor-newsomstatement-on-u-s-district-court-decision-invalidating-californiasassault-weapons-ban/ [https://perma.cc/6WYC-JCGH] (last visited July 26, 2026).

RICHARDS V. NEWSOM 65

prevents a government agent during a warrantless

compliance check from watching and listening to hours of the recorded interactions—all under the guise of making sure the videorecording system works. 5

To be sure, the facts of Lamont involved an affirmative

imposition on the person receiving the information—he or she had to opt in to receive communist materials. But

nothing in Lamont suggests it was fixated on how the free flow of information is restricted. Lamont also does not

support the majority’s contention that a plaintiff must show some threatened or actual adverse action against the

speaker. 6 There was no adverse consequence to the speaker or receiver of information in Lamont, but instead merely an obstacle—having to opt in—in the free flow of ideas. Here, being recorded is akin to an “opt-in”—if you want to receive information in a gun store, you agree to be recorded. Further,

The majority calls this speculative but the statute imposes no limits or even any guidance on how a government can ensure compliance with the recording requirement. Given this breadth of the law and the apparent lack of law enforcement rationale, the state’s response downplaying the plaintiffs’ fears of the state misusing the audio-recording rings hollow. In any event, for the right to receive information, the relevant inquiry is whether surveillance itself will cause inhibition in exchanging ideas. See Lamont, 381 U.S. at 307 (that some people may “feel some inhibition” in receiving or sending communist material was enough to restrict the free exchange of information guaranteed by the First Amendment). The plaintiffs’ fears are plainly plausible. Cf. also United States v. Stevens, 559 U.S. 460, 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promises to use it responsibly”). 6

The majority also relies on Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) and O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016), but those cases involved First Amendment retaliation claims. Here, the proper lens to consider the claim is a First Amendment right to receive and exchange information

66 RICHARDS V. NEWSOM

the Court focused on the general deterrent effect on the free exchange of core political speech: “This requirement is

almost certain to have a deterrent effect. . . . [A]ny addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist

political propaganda.’ The regime of this Act is at war with the ‘uninhibited, robust, and wide-open[] debate and

discussion that are contemplated by the First Amendment.” Id. at 307 (citation omitted). 7 In Laird, the Court cited Lamont, among other cases, and explained that “these cases fully recognize that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights.” Laird, 408 U.S. at 12–13 (emphasis added).

In arguing that the plaintiffs’ harm is too speculative, the majority relies on Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (no standing for claim that the government under FISA may be surveilling them), and Laird v. Tatum, 408 U.S. 1 (1972) (no standing to challenge claim that the Army may be collecting information about them). As a threshold matter, both cases addressed only standing and did not involve the First Amendment right to receive information. Further, the alleged harm in those two cases was too speculative and subjective as there was no evidence that the government was in fact surveilling them. See Clapper, 568 U.S. at 410–11 (referring to “highly speculative” theory in which “respondents fail to offer any evidence that their communications have been monitored”); Laird, 408 at 14 (referring to “speculative apprehensiveness” about the Army surveilling them). In contrast here, there is no speculation about surveillance—California mandates it 24/7. And Laird’s two-sentence dicta about Lamont cannot sidestep Lamont’s emphasis on the exchange of ideas, which is the very reason the First Amendment right to receive information exists. Lamont, 381 U.S. at 307 (referring to the law’s “deterrent effect,” the likelihood that citizens will “feel some inhibition,” and the “uninhibited, robust, and wide open debate” reflected in the First Amendment).

RICHARDS V. NEWSOM 67

In sum, the plaintiffs plausibly allege that the 24/7 audiorecording requirement under California’s surveillance law burdens both the listener and the speaker’s ability to receive and exchange information. 8

II. California’s law also violates the Fourth Amendment

because it grants inspectors unbridled discretion in

conducting inspections of home-based FFLs.

Based on the Fourth Amendment, the Supreme Court has

held that warrantless searches are per se unreasonable

“subject only to a few specifically established and welldelineated exceptions.” City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 419–20 (2015) (quoting Arizona v. Gant, 556

The plaintiffs characterized their First Amendment claim slightly differently, claiming that the law “chilled” their right to free speech. As the majority points out, the “chilling” effect argument typically involves a threat of reprisal by the government. First Amendment jurisprudence, however, is notoriously murky with blurred boundaries. See Arce v. Douglas, 793 F.3d 968, 988 (9th Cir. 2015) (explaining that different theories for First Amendment claim overlapped). I think the plaintiffs’ First Amendment claim is better understood as a right to receive and exchange information. This argument is simply a variant of the parties’ existing arguments. See Machowski v. 333 N. Placentia Prop., LLC, 38 F.4th 837, 843 (9th Cir. 2022) (“True, our analysis may not perfectly track the arguments Machowski presents in her briefing. But ‘a court is not hidebound by the precise arguments of counsel.’”) (citation omitted)).

This case is a far cry from U.S. v. Sineneng-Smith. 590 U.S. 371, 376 (2020) (noting that the “party presentation principle is supple, not ironclad”). There, the party had argued that the statutory provisions “did not cover her conduct, and even if they did, they violated [her First Amendment rights] as applied” to her, but then the court decided on a completely different ground that the law “trenches on the First Amendment sheltered expression of others.” Id. at 377 (emphasis added). In contrast here, the plaintiffs have consistently argued that the law inhibits free exchange of ideas.

68 RICHARDS V. NEWSOM

U.S. 332, 338 (2009)). One of the “well-delineated

exceptions” are warrantless inspection searches of “closely regulated” businesses. New York v. Burger, 482 U.S. 691, 699 (1987) (noting lower expectation of privacy for such businesses).

But if the legislature “has authorized inspection but made no rules governing the procedures that inspectors must

follow, the Fourth Amendment and its various restrictive rules apply.” Donovan v. Dewey, 452 U.S. 594, 599 (1981) (citation omitted). “In such cases, a warrant may be

necessary to protect the owner from the ‘unbridled discretion of executive and administrative officers.’” Id. (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978)

(alterations adopted). Thus, the Court in Burger held that a statute authorizing warrantless inspections of “closely

regulated” businesses must, among other things, provide a “constitutionally adequate substitute” for a warrant—i.e., the statute must have some limits on the warrantless search. Burger, 482 U.S. at 703; see Patel, 576 U.S. at 426–28. The Court upheld the statute because it stated that inspections would only occur during “regular and usual business hours” and its scope was “narrowly defined” to allow inspections of particular objects, areas, and records. Burger, 482 U.S. at 711–12.

Here, however, California’s warrantless inspection

provision for FFLs—which purpose is to ensure the

recording system works—lacks such limitations. 9 It states

The majority contends the plaintiffs did not assert this theory on appeal. That is not so. While the plaintiffs focused on the 24/7 nature of audiovisual surveillance, they argued in their opening brief that “[w]ithout strict temporal and scope-based limitations, the statute violated the

RICHARDS V. NEWSOM 69

that an FFL “shall allow access to the system to an agent of the department or a licensing authority conducting an

inspection of the licensee's premises, for the purpose of inspecting the system for compliance with this section, and only if a warrant or court order would not generally be

required for that access.” § 26806(b)(1). There are no limits on when inspections can occur such as during regular

business hours only, as in the statute in Burger. Cf. id. at 711 (provision at issue only allowing inspections “during [] regular and usual business hours”); United States v. Biswell, 406 U.S. 311, 311–12 (1972) (law specified that inspections were limited to business hours).

Under California’s law, a government agent without a

warrant can enter a home-based FFL’s house unannounced

at any time or any day—whether it be at 11:00 p.m. on a

Tuesday or on Christmas morning—to ensure compliance

with the recording requirement. Nor does the statute place any meaningful limits on where the agent can search because a videorecording “system” is not limited to one place; it includes the camera but may include “back room” servers or computers that are located elsewhere. For example, a

government may be able to enter at any time a home-based FFL owner’s bedroom if a computer desktop or server

storing recorded video is located there. And as noted above, the statute has no limits or even any guidelines on what a government agent can do to ensure that the recording system operates. As written, nothing prevents an agent from sitting at a home-based FFL and watching hours of recorded

conversations—all to ostensibly verify that the recording system works.

Fourth Amendment,” citing Rush v. Obledo, 756 F.3d 713 (1985), the leading circuit authority on this issue.

70 RICHARDS V. NEWSOM

We invalidated a similar California inspection law of

“closely regulated” home-based businesses in Rush v.

Obledo. 756 F.2d 713 (9th Cir. 1985). There, the Ninth

Circuit concluded that a statute allowing warrantless

inspection of home daycares with no place or time

limitations was unreasonable under the Fourth Amendment, given that it allowed inspections to occur even after business hours and potentially in “private contexts.” Id. at 721. Rush remains good law and is directly on point here. By running an FFL business from one’s home, a dealer does not

transform his or her home into a brick-and-mortar store

lacking the same robust privacy protections.

The majority argues that home-based FFLs are nothing

like home day cares. 10 It is true that, unlike home daycares, home-based FFLs may not operate during strict business

hours, and guns are always at home. But the explicit purpose of the inspection provision is not to check for compliance with gun regulations generally but instead to ensure

compliance with the recording requirement. See

§ 26806(b)(1) (providing that the inspection is “for the purpose of inspecting the system for compliance with this section”). Thus, the inspection does not directly regulate firearms, nor will agents inspect the guns themselves. See

The majority also characterizes the possibility of unreasonable searches as applied to home-based FFLs as “speculative.” At the motion to dismiss stage, we do not consider the likelihood of possible harm. Instead, “for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The state has not rejected the application of Section 26806 to home-based FFLs, and thus the applications above are plausible. The majority effectively raises the pleading standard by requiring “certainty” rather than “plausibility.”

RICHARDS V. NEWSOM 71

Rush, 756 F.2d at 721 (“The searches must be directly

connected with the environment the Legislature seeks to

regulate—i.e., the areas of the home used by children when the children are present.”). They are there just to examine audio-visual equipment. 11

But no exigency exists requiring the government to

inspect a video camera or a backroom server at any time of the day. As we held, “the mere fact that a business is carried on in the home for certain hours does not remove the home from Fourth Amendment protection.” Id. at 717; see also id. at 722 (“We cannot stress forcibly enough that there is no basis for applying the ‘pervasively regulated business’

exception to the warrant requirement merely because a

business conducted in a home or elsewhere requires a

license.”). Without reasonable limitations, Section

26806(b)(1) is unconstitutional under Rush.

According to the majority, however, none of this matters because nowhere does Section 26806(b)(1) grant the state the authority to conduct an inspection. 12 Rather, the

majority contends that Section 26806(b)(1) provides an

exception to the statute’s general rule that a “licensee shall not use, share, allow access, or otherwise release recording, to any person.” § 26806(b)(1). The majority says that other statutes provide the authority to inspect—and none of them

The majority’s reliance on United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008) is misplaced. No temporal requirement for inspecting commercial trucks was justified because trucks are routinely driven after-hours; indeed, that may be the only way a shipping truck timely reaches its destination. While a firearm sale could theoretically occur after hours, there is nothing in the record suggesting that it is the norm or routine.

Noticeably, the state never mentions this theory in its brief. 72 RICHARDS V. NEWSOM

has been explicitly challenged in this lawsuit. See Cal. Penal Code § 26720; Cal. Penal Code § 28480; 11 Cal. Code Reg. § 4022(a).

But the law’s plain language authorizes access by

requiring that the licensee “shall allow access to the system to an agent of the department.” § 26806(b)(1) (emphasis

added). “Shall” is a command—it means that the inspector must be allowed to enter for an inspection. See Nat. Res. Def. Council, Inc. v. James R. Perry, 940 F.3d 1072, 1078 (9th Cir. 2019) (explaining that the term “shall” “is a mandatory term”); Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35 (1998) (“‘[S]hall’…creates an

obligation impervious to judicial discretion.”).

In any event, pointing to other statutory provisions does not answer whether a warrantless inspection of a homebased business without limitations is constitutional.

Constitutional challenges do not amount to a game of

whack-a-mole where the government can save an

unconstitutional statute by citing other vague statutory provisions and claiming that they too should have been

challenged. Cf. Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926) (“[A] court may not exercise legislative functions to save the law from conflict with constitutional limitation.”). The bottom line here is that California allows government agents to enter a FFL-business, whether in a home or at a commercial store, at any time of the day and on any given day, with no guidance on how the agent can confirm

compliance with the audio-visual recording requirement.

Such limitless invasiveness cannot survive the Fourth

Amendment.

RICHARDS V. NEWSOM 73

* * * *

California’s FFL surveillance law is staggering in scope. It requires that every conversation between an FFL and a customer be audio-recorded—and saved for at least a year at the direction of the government—even though there is no

reasonable law enforcement basis to do so. The law also

allows government agents at their whim to enter home-based FFLs unannounced without a warrant at any time of the day on any given day of the year—despite no exigency requiring late night inspections of audio-visual equipment. California should not trample on the constitutional rights of its citizens and gun retailers under the vague guise of safety. I

respectfully dissent.

Richards v. Newsom

Summary · law.co

Key issues

Procedural posture

Authorities cited

Opinion · public domain