A new Ninth Circuit ruling raises a number of hard issues
Yesterday, the Ninth Circuit issued a divided opinion in Richards v. Newsom, turning away a facial challenge to California Penal Code Section 26806. That statute obliges federally licensed firearms dealers to install and maintain digital recording systems on their premises. The challenge touched on First, Fourth, and Fifth Amendment grounds, but this piece concentrates on the Fourth Amendment questions, where the author believes the majority’s reasoning may be flawed.
From what is publicly understood, the statute requires federally licensed gun shops to have around-the-clock video surveillance covering interior views of every entrance and exit, all areas where firearms are displayed, and every sales point, with the goal of enabling identification of those involved in transactions. The stores must preserve the footage for at least a year and must provide video records in response to a search warrant or other court order.
Viewed through a Fourth Amendment lens, the case presents a challenging set of questions. At the outset, one has to decide what to make of the mandate to install and operate the system. Does requiring a shop to install and use such equipment transform the shop owner into a state actor for Fourth Amendment purposes? If so, what precisely is examined, and whose rights are at stake—the shop owner’s, or the customers and others who appear inside the shop? Is this arrangement better understood through California Bankers Association v. Schultz’s record-keeping framework, or does it align more closely with compelled-records theories like Carpenter or Chatrie?
And there is more. The case invokes Maryland v. Macon to consider whether there is a reasonable expectation of privacy in a store that is open to the public, but the surveillance here runs 24/7, raising concerns about what might be recorded after business hours. Would the Fourth Amendment apply to the video itself, or would it hinge on which time window the government later seeks to compel? Which issues can be addressed in a facial challenge, and how might the closely regulated industries doctrine apply — or not apply — in light of City of Los Angeles v. Patel?
Time for a thorough treatment here doesn’t permit a full recitation of the case. Yet one aspect stands out as notably incomplete, if not incorrect, in the discussion: the analysis of state action. The panel notes that the plaintiffs argue the statute renders gun shops state actors under the Fourth Amendment. The court summarizes the argument as invoking three tests from Brunette v. Humane Society of Ventura County for determining when a private party has acted under color of state law for purposes of 42 U.S.C. § 1983: (1) the joint action test, (2) the symbiotic relationship test, and (3) the public functions test, and the court states that it disagrees with that line of reasoning. This characterization appears unusual.
In Fourth Amendment cases, state action is typically evaluated by asking whether a private party acted as an agent of the government, with considerations such as knowledge and acquiescence guiding the inquiry. The Ninth Circuit has on occasion borrowed state-action concepts from contexts outside Fourth Amendment law, as it did in Brunette, but Brunette did not purport to supply a comprehensive catalog of state-action theories. Of particular significance, Brunette did not address the so‑called “state compulsion” test. As described in Children’s Health Defense v. Meta Platforms, courts have summarized four tests for when a private party may fairly be treated as a state actor: (1) the public-function test, (2) the joint-action test, (3) the state-compulsion test, and (4) the nexus test, a framework anchored in Lugar and Adickes.
Lugar, building on Adickes, informed the idea that a private actor may be treated as embodying the state when the government has compelled conduct by statute or by a practice with force of law. The question thus arises: why wouldn’t a gun shop be deemed a state actor under the state-compulsion approach if a statutory obligation requires the shop to act in a way that has the same effect as government-directed action? Perhaps the authority at issue was not cast as a search or seizure, and perhaps that distinction matters for facial challenges. Still, it remains difficult to see why any compelled action wouldn’t be viewed as state action for Fourth Amendment purposes.
These debates illustrate the complexity of bridging private conduct with constitutional oversight when a state imposes broad surveillance requirements on a regulated industry. The Richards v. Newsom decision thus opens a discussion that straddles multiple doctrinal lines, with ongoing questions about how to apply traditional state-action tests in modern regulatory settings and what that means for the balance between public safety interests and individual rights.
