California Put a Microphone at the Gun Counter — and Won

Two weeks ago the Second Amendment Foundation asked the full Ninth Circuit to rehear Richards v. Newsom. That filing is the whole story for California dealers right now, because on August 27 a three-judge panel affirmed the dismissal of every constitutional claim against California Penal Code § 26806 — the statute that requires every licensed dealer in the state to keep a 24/7 audio and video recording system. In a storefront in Fresno, that is a line item. Around a kitchen table, that is your house.

The petition for rehearing en banc was filed October 13. Until the full circuit acts — and most petitions are denied — the panel opinion is the law in the circuit, and § 26806 has been in force since January 1, 2024. Dealers who have been treating the recording requirement as a live lawsuit rather than a live obligation should read the statute itself.

What the statute actually requires

• Continuous recording 24 hours a day at no less than 15 frames per second, with every camera permanently mounted in a fixed location.
• Audio as well as video for any system located inside the premises.
• Coverage of every entry and exit, every area where firearms are displayed, and every point of sale — close enough to identify the people in the transaction.
• Recordings retained a minimum of one year, secured against tampering, unauthorized access or theft, with the date and time clearly displayed.
• A failure-notification system that alerts the licensee when the system or its storage drops.
• A posted sign telling customers they are being recorded.
• No release of recordings except to a licensing agent during an inspection where a warrant would not otherwise be required, under warrant or court order, or in an insurance claim or civil discovery.

Note what the statute does not contain: an exemption for home-based licensees. The kitchen table FFL — the dealer running transfers out of a residence, workshop or converted garage — is covered on identical terms. That is why this case drew home-based plaintiffs, not just retail chains.

What the panel decided, and what the dissent said

Judge Koh, writing for the majority, held that the plaintiffs failed to state a claim under the First, Fourth or Fifth Amendments. Merely complying with the recording requirement does not turn a dealer into a state actor, the panel reasoned. Section 26806 does not itself authorize inspections — that authority comes from other California provisions the plaintiffs never challenged. And because the statute requires nobody to disclose a name or an affiliation, the anonymity and association theories failed too.

Judge Kenneth Lee dissented in language dealers will recognize from their own counters: “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.” Under the inspection provision, he wrote, nothing stops an agent from sitting at a home-based FFL watching hours of recorded conversation, ostensibly to verify the system works. The majority answered that this was a theory the plaintiffs never pleaded and, on the home-based facts, one they lacked standing to bring yet.

That procedural point is the useful takeaway. The challenge died on pleading and standing, not on the merits of whether a bedroom should sit under a year-long audio record. The en banc petition — and the amicus briefs filed in support of it in the last week — are an attempt to fix exactly that.

Why it matters outside California

Ninth Circuit precedent binds the district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. A legislature that wants a recording mandate now has a circuit opinion explaining how to draft one that survives a facial challenge: no self-executing inspection authority, no disclosure requirement, no compelled speech. That is a blueprint, and legislatures read blueprints.

For dealers in the rest of the circuit, including FFL dealers in Arizona, the work is not compliance — it is knowing what a proposal would cost before it is introduced. A four-camera system running 24 hours a day with a year of retained audio and video is a storage and bandwidth line item, plus a service contract, plus a failure-alert routine that a real person has to watch. Price it now, while it is still hypothetical.

Five things to do if you operate from a residence

1. Read the statute, not a summary. California dealers: § 26806, in full. The gap between what dealers think it says and what it says is where citations come from.
2. Map cameras to the list. Entries and exits, display areas, points of sale — each one, fixed, no pan-tilt units substituting for placement.
3. Own the storage. One year of retention, tamper protection, and a written list of who can pull footage. If the recorder is in a room that also serves as family space, put that in writing with your insurer.
4. Brief the counter. Assume every word at the point of sale is on a recording that outlives the transaction. Opinions about politics, jokes, and customer gossip belong nowhere near the display case.
5. Test and log. Check failure alerts monthly and keep the log. A dead camera discovered during an inspection is a different conversation than a dead camera discovered on a Tuesday and fixed the same day.

How customers find you when your storefront is a house

The recording mandate lands hardest on the dealers who already have the least margin for error: home-based licensees with no walk-in traffic, no sign on the road and no hours a passerby can read. Their discovery path is a phone and a map. A customer looking for a transfer dealer among the FFL dealers in California — or, say, FFL dealers in San Diego — compares three things before dialing: the transfer fee, the hours (including “by appointment”), and whether the license and premises look legitimate. A listing with none of that loses the call to the shop that has it, and that shop is rarely the cheapest.

Two minutes closes the gap. If you are licensed and not yet in the directory, claim your free dealer listing: create the account, add your website, upload your license, and put your transfer fee and appointment hours somewhere a customer searching your town can actually see them. There is no charge for the account and no offer attached — registering is what lets you claim the record.

What to watch

Three dates. The en banc petition filed October 13, where the circuit can grant it, deny it or call for a response — a denial leaves the panel opinion standing. The state sessions that open in January, where a recording-style bill in a Ninth Circuit state is the realistic next test. And your own insurance renewal: ask the carrier in writing whether a compliant recording system changes your premises liability, and keep the answer filed with your system log.

Recording your own counter is a cost. Recording it badly — no log, a camera that died in March, a sign that fell off the wall — is a more expensive one.

— Fred Thompson, [email protected]