The Fourth Amendment and Laws Requiring Video Recording Inside Stores

Yesterday, a divided Ninth Circuit handed down Richards v. Newsom, rejecting a facial challenge to a California law, California Penal Code Section 26806, which requires federally licensed firearms dealers to maintain digital recording systems on their business premises.  The law was challenged on First Amendment, Fourth Amendment, and Fifth Amendment grounds.  I wanted to focus on the Fourth Amendment issues in this post, as I’m not sure the majority’s reasoning was right.

I hadn’t heard of this law until yesterday, so my apologies if I’m getting the details wrong.  But as I understand it, the law requires federally licensed firearms dealers (which I’ll just call “gun shops” for short, if that’s not too inaccurate) to have 24/7 video surveillance of “interior views of all entries or exits to the premises, [a]ll areas where firearms are displayed[, and] all points of sale, sufficient to identify the parties involved in the transaction.”  They have to store the video for at least a year, and agree to turn over video records in response to a search warrant or other court order.

From a Fourth Amendment perspective, this is a hard law school exam question.  For starters, you have to figure out what to make of the order to have the system. Is the requirement of installation and use (to the extent a particular shop doesn’t already have such a system) forcing the gun shop owner to act as a state actor, installing the device?   If so, what exactly is searched, and whose interests are implicated— those of the gun store owner, or the customers and others in the gun store?  Does this fall within the famously murky record-keeping framework of California Bankers Association v. Schultz, or is it more like an order to compel records as in Carpenter or Chatrie?

But wait, there’s more. Under Maryland v. Macon, there’s no reasonable expectation of privacy in a store open to the public, but here the surveillance is 24/7, and you don’t know what might get recorded after work hours.  So would there be Fourth Amendment rights in the video itself, or would it depend on which time window of video the government later tries to compel?  And which of these issues can be addressed in a facial challenge, and how might the closely regulated industries exception apply or not apply, under City of Los Angeles v. Patel?

I don’t have time for a long post to do the case justice, unfortunately.  But here’s one part I want flag that strikes me as at the very least incomplete, if not likely wrong: The state action analysis.  At one point in the case, the panel discusses the plaintiffs’ argument that the law made gun shops state actors under the Fourth Amendment.  Here’s what the court says:

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). Again, we disagree.

This seems odd.

First, Fourth Amendment state action is generally an agency test that looks at whether the private party was acting as the government’s agent, which in turn looks to knowledge, acquiescence, and the like.   The Ninth Circuit has sometimes instead in Fourth Amendment cases tried to summarize state action analysis from outside Fourth Amendment law, which is what the panel is doing here, and was doing in Brunette.  But even if you try to apply the different “tests” from outside Fourth Amendment law, the 2002 Brunette case did not purport to provide a comprehensive list of theories of state action.

Of particular relevance, Brunette did not ask the court to consider the “state compulsion” test.  As the court put it in Children’s Health Defense v. Meta Platforms, quoting Supreme Court caselaw:

As we have explained, the Supreme Court has identified four tests for when a private party “may fairly be said to be a state actor”: (1) the public function test, (2) the joint action test, (3) the state compulsion test, and (4) the nexus test. Lugar, 457 U.S. at 937, 939, 102 S.Ct. 2744.

The Supreme Court in Lugar rooted this test in Adickes v. SH Kress & Co., which held that a restaurant would be a state actor if it refused service to a customer because of a state-enforced custom of segregating the races in public restaurants. Adickes noted:

For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law.

I wonder, why isn’t a gun shop turned into a state actor by a statutory provision requiring action under this state compulsion test?  Maybe the resulting act wasn’t a search or seizure, and maybe it’s not an issue that can be address in a facial challenge.  But I’m not sure why whatever action is compelled wouldn’t be state action.