[00:00:00] Speaker 02: Thank you. [00:00:01] Speaker 02: We will now hear the final case to be argued today. [00:00:04] Speaker 04: It's Richard versus newson Good morning, and may it please the court and a bar there for appellant Richards and the rest I'd like to reserve three minutes for rebuttal if I may I [00:00:27] Speaker 04: This case is not about whether the government may regulate a licensed entity. [00:00:32] Speaker 04: It is about whether the government may require private parties to carry out a suspicionless government surveillance program on the government's terms at the private party's own expense. [00:00:44] Speaker 04: Section 26806 does just that. [00:00:48] Speaker 04: It requires firearms dealers, including those who operate within their very own homes, to install, operate, and maintain an audio-visual continuous surveillance for the state's sole use. [00:01:01] Speaker 04: That form of compulsion violates the Constitution in three distinct ways. [00:01:06] Speaker 04: First, [00:01:07] Speaker 04: It constitutes a continuous warrantless search without probable cause under the Fourth Amendment. [00:01:13] Speaker 04: It allows the government to physically commandeer private property for the government's use and purposes without compensation in violation of the Fifth Amendment. [00:01:23] Speaker 04: And finally, it substantially and predictably chills First Amendment speech and association. [00:01:30] Speaker 04: The district court treated this case as one about pure, simple, ordinary regulation. [00:01:35] Speaker 04: It is not about that. [00:01:37] Speaker 04: And that error infected the district court's analysis on all three constitutional claims. [00:01:43] Speaker 04: The judgment should be reversed. [00:01:46] Speaker 04: Turning first to the Fourth Amendment, the district court had made two foundational errors in its analysis. [00:01:53] Speaker 04: It treated the only constitutionally relevant search as the later subsection B review of the FFLs right now. [00:02:02] Speaker 05: May I ask you a question about the two plaintiffs who have home-based firearm federal licenses? [00:02:10] Speaker 05: So Mr. Richards operates his firearm business out of a separate structure at his residence. [00:02:18] Speaker 05: But in that separate structure, he also operates his law office [00:02:22] Speaker 05: And also it says that his family visits him in the mornings and in the evenings and his young children visit him in his home office in partial states of dress before bed. [00:02:36] Speaker 05: Is that correct? [00:02:37] Speaker 05: So it sounds like he is mingling his law business, his firearm business and his family life in that separate structure and it goes from morning to late into the evening. [00:02:48] Speaker 04: That's correct. [00:02:49] Speaker 04: The allegations of the complaint. [00:02:51] Speaker 04: I'm not exactly sure how close to his kitchen the home office is, but it is on his property. [00:03:00] Speaker 04: His family does visit him there, and the complaint does mention his young children. [00:03:04] Speaker 05: They come to him at night. [00:03:05] Speaker 05: They visit him in the morning and at night, so he's [00:03:09] Speaker 05: Working around the clock. [00:03:10] Speaker 05: It sounds like is that correct? [00:03:12] Speaker 05: Okay. [00:03:13] Speaker 05: All right. [00:03:13] Speaker 05: Let's also talk about Mr. Van Vander Mulen who also has a home firearm business. [00:03:20] Speaker 05: So he is doing it in his home. [00:03:22] Speaker 05: He's doing it both [00:03:25] Speaker 05: Seems like both online and in person. [00:03:28] Speaker 05: Is that correct? [00:03:29] Speaker 04: That's how I understand that. [00:03:30] Speaker 05: Okay, all right. [00:03:31] Speaker 05: So that also, I mean, this one it's less clear as to what, like with Mr. Richards, he's doing it morning and night. [00:03:38] Speaker 05: There's no limit on when he's doing it. [00:03:40] Speaker 05: He's doing it bedtime. [00:03:41] Speaker 05: He's doing it morning. [00:03:42] Speaker 05: What about Mr. Vander Mulen? [00:03:43] Speaker 05: Is it, it's not really clear when he's doing it, but if he's doing it from his home, he could do it online. [00:03:49] Speaker 05: You know, in the middle of the night in his pajamas, he could, you know, wake up at 2 a.m. [00:03:54] Speaker 05: and do it. [00:03:54] Speaker 05: Like, it's not even limited at any time, right, when he's doing it. [00:04:00] Speaker 04: I'm not quite sure what your honor was referring to when you mean doing it. [00:04:03] Speaker 04: Do you mean engaging in the... Engaging in firearm sales. [00:04:06] Speaker 04: It's not clear what Mr. Vander Meulen's actual business hours are. [00:04:10] Speaker 04: What's really common and what are called kitchen table FFLs, these are firearm dealers from their homes, [00:04:17] Speaker 04: is that they're in their homes doing firearm business. [00:04:20] Speaker 04: And it doesn't often look like your normal nine to five, these may be appointment only businesses. [00:04:27] Speaker 05: But there's no allegation in, if I look at paragraph 11, I don't see anything about appointment only. [00:04:33] Speaker 05: That is clear. [00:04:34] Speaker 05: And I see, I thought he said he sometimes does things online. [00:04:38] Speaker 05: I could be wrong about that. [00:04:42] Speaker 05: It may not be. [00:04:43] Speaker 05: He says online. [00:04:44] Speaker 05: He says, Mr. Vandermulen operates a retail sales firearm business and online firearm business named Mountain House Firearms. [00:04:52] Speaker 04: Right. [00:04:52] Speaker 04: It's not clear from the allegations of the complaint the exact hours that Mr. Vandermulen is engaged in firearms dealer behavior conduct. [00:05:02] Speaker 04: However, he's in his home 24-7 and that's how this law operates. [00:05:07] Speaker 04: Okay. [00:05:08] Speaker 05: So we can assume that he may be engaging in his firearm business 24-7. [00:05:12] Speaker 04: It could be assumed, though that doesn't really make sense, and that's also not in the record. [00:05:17] Speaker 04: We weren't able to get beyond a motion to dismiss to determine what the actual hours of his business were, but again. [00:05:23] Speaker 05: But this is your complaint, right? [00:05:24] Speaker 05: You could have put those details in. [00:05:25] Speaker 05: This is your client. [00:05:26] Speaker 05: You could have asked him. [00:05:28] Speaker 05: What are your business hours? [00:05:29] Speaker 05: And that's not in there either for Mr. Richards or for Mr. VanderMulen, frankly. [00:05:33] Speaker 05: You would agree they're not in here. [00:05:34] Speaker 04: Yes, but again, it doesn't really matter what their exact hours are because this law is not limited to business hours. [00:05:40] Speaker 04: This law is 24-7. [00:05:41] Speaker 05: But if they have no business hours, right? [00:05:45] Speaker 05: Mr. Richards' kids in partial states of dress are going to him before they go to sleep. [00:05:56] Speaker 05: Anyway, you're conceding that the business hours are not identified for either Mr. Vander Mulen or Mr. Richards in this complaint. [00:06:03] Speaker 04: I would concede that they're not identified and also that again it doesn't matter because this law is not limited to business hours. [00:06:08] Speaker 04: It is 24 hours a day, seven days a week. [00:06:11] Speaker 04: Many people today work in home-based offices. [00:06:14] Speaker 04: and their children visit them in where their businesses are. [00:06:17] Speaker 04: We're also talking about this case is an over-breath challenge for both the Fourth Amendment and the First Amendment in the way it affects not just Mr. VanderMeulen and Appellant Richards, but also other home-based FFLs. [00:06:30] Speaker 04: If this case had gotten into the discovery phase, we could have shown exactly what sorts of businesses are affected and how they are affected. [00:06:39] Speaker 04: But this is just the complaint stage and we only need a plain, clear statement. [00:06:44] Speaker 04: The allegations of this complaint meet that bar. [00:06:47] Speaker 05: And the complaint doesn't say that any of the plaintiffs have actually been subject to an inspection for compliance with the statute, correct? [00:06:56] Speaker 04: I don't believe that the complaint shows that there has been an actual inspection, regulatory inspection under Section A. This was early in the enforcement. [00:07:07] Speaker 04: A lot of this took place in early months of the enforcement of the statute. [00:07:10] Speaker 05: Or that the state has actually viewed any of the recordings during a compliance inspection. [00:07:15] Speaker 04: the allegations don't talk about that but again under the fourth amendment this doesn't matter because it is not that it is not simply the subsection B regulatory inspection that constitutes a search that's actually the seizure the search happens when the government compelled mandated [00:07:32] Speaker 04: 24 hours a day surveillance is happening. [00:07:36] Speaker 04: That's what constitutes the search. [00:07:37] Speaker 04: You're saying the moment the recording is turned on, that's the search. [00:07:40] Speaker 04: That's correct. [00:07:40] Speaker 04: Because it's government-compelled and because under Jones it constitutes a trespassory search, because it's government-mandated, it's a physical intrusion into private property for the express purpose of collecting law enforcement information for the government's purposes and only the government's purposes. [00:07:59] Speaker 04: And Carpenter goes beyond Jones and says that even though we may not have an actual physical intrusion, though a physical intrusion applies here by the government, it is the comprehensive recording of movements, conversations, and associations over time. [00:08:15] Speaker 04: This law requires the collection of the same sort of detailed, deeply personal, revealing information that is protected by the Fourth Amendment. [00:08:24] Speaker 05: Do you think that this statute authorizes an inspection? [00:08:30] Speaker 04: The statute does expressly authorize an inspection, but that's not the only constitution. [00:08:34] Speaker 05: Wait, it does? [00:08:35] Speaker 04: It does. [00:08:36] Speaker 05: Okay. [00:08:37] Speaker 05: And are you referring to, what is that, B, section B of 26806, is that correct? [00:08:47] Speaker 05: Yes, that's correct. [00:08:48] Speaker 05: Okay. [00:08:49] Speaker 05: So it says a licensee, this is B, a licensee shall not use, share, allow access or otherwise release recordings to any person except as follows. [00:09:00] Speaker 05: And A1 says, 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. [00:09:19] Speaker 05: Where does that authorize an inspection? [00:09:22] Speaker 05: Don't we have to look to another penal code statute to authorize the inspection? [00:09:27] Speaker 05: This just governs when the licensee can release. [00:09:33] Speaker 05: Actually, that one doesn't even say release. [00:09:35] Speaker 05: It only says release in B2 and B3. [00:09:40] Speaker 05: B1 just says when you allow access to a compliance inspector. [00:09:46] Speaker 05: So it's not even talking about release of recordings. [00:09:51] Speaker 05: But where in B1 does it authorize, say, you know, the department may conduct an on-site inspection? [00:09:57] Speaker 05: I don't see that there. [00:10:00] Speaker 05: Don't we have to look at other penal code sections for the authority to do an inspection? [00:10:07] Speaker 04: I suppose, but I'm not sure how B1 could mean anything other than giving, if you shall allow, if the FFL shall allow access, I'm not sure how the law doesn't give the government the authority to do so for the purposes of ensuring compliance with this section. [00:10:25] Speaker 04: And the district court recognized [00:10:27] Speaker 04: But that's exactly what this section does and it used this exception to this subsection to suggest that this is a sort of administrative regulatory inspection that's okay under Berger, which it isn't because this is not the search. [00:10:46] Speaker 05: But if I look at paragraph 37 of your amended complaint, you said California law allows California DOJ [00:10:52] Speaker 05: to conduct inspections of FFLs at least once every three years to ensure compliance with California firearm laws and it cites other penal code sections. [00:11:00] Speaker 05: It doesn't cite 26806. [00:11:01] Speaker 05: I mean even your complaint seems to acknowledge that you have to look at other penal code sections for the authority to conduct an inspection and not 26806 which is just telling when a licensee can give access to, [00:11:20] Speaker 05: a recording to a compliance inspector or actually release the recordings pursuant to a search warrant or court order which is B2 or B3 which is released the recordings as part of an insurance claim or some kind of civil discovery process in response to subpoenas request for production or court order. [00:11:41] Speaker 04: OK, so California's laws with regard to the licensure and oversight of FFLs, both the state laws and federal laws, they're extensive. [00:11:53] Speaker 04: And sure, there are laws that are going to [00:11:56] Speaker 04: They're going to require access by FFLs to state inspectors. [00:12:03] Speaker 04: This subsection just makes very clear that's when FFLs shall comply, shall allow access, and for what purpose. [00:12:11] Speaker 04: Because the statutory section you referenced in our complaint does talk about, in general terms, inspections for compliance with firearms laws in California. [00:12:21] Speaker 05: So I'm unclear. [00:12:23] Speaker 05: So I'm understanding that you're saying the moment the recording starts, that's the search. [00:12:28] Speaker 05: Yes. [00:12:29] Speaker 05: Are you claiming that any inspection, whether any recording is viewed or not, violates the Fourth Amendment? [00:12:37] Speaker 05: Any inspection, whether? [00:12:38] Speaker 05: Right. [00:12:40] Speaker 05: I mean this statute has requirements about where the recording has to show, right? [00:12:47] Speaker 05: It has to show all areas where firearms are displayed. [00:12:51] Speaker 05: all points of sale, all entries and exits to the premises, that it has to be maintained for one year, the date and time has to be clear and accurate, it has to be stored in a secure manner. [00:13:06] Speaker 05: Clearly there could be some inspections for compliance that wouldn't involve actually reviewing the recording, correct? [00:13:12] Speaker 04: No, because there's really no way to determine that the FFL's surveillance is in compliance with all of those things. [00:13:23] Speaker 04: You have to have, I think it's 15 frames per second, continuous recording. [00:13:27] Speaker 04: You have to know that audio is being recorded. [00:13:30] Speaker 04: There's no way to do any of that without reviewing it. [00:13:32] Speaker 05: But again... But if that inspection was during business hours, wouldn't that be permissible? [00:13:36] Speaker 04: The inspection may be permissible, but that is not the Fourth Amendment concern here. [00:13:40] Speaker 04: The Fourth Amendment concern here is government-mandated compulsory surveillance, the taking of the use of electronic audiovisual equipment to listen to people's conversations, to track their associations. [00:13:52] Speaker 04: Right, okay. [00:13:53] Speaker 05: Let's say we just hypothetically disagree with you that the moment of recording starts a search, okay? [00:14:01] Speaker 05: If we disagree with you on that, it seems that you can see that certain inspections during business hours would be valid, right? [00:14:08] Speaker 04: Not under this law. [00:14:10] Speaker 04: Because in this law, it does not meet the burger, even those inspections that are, that give a limit based from subsection B1 and are approved by other subsections of the California Penal Code. [00:14:24] Speaker 04: Even those regulatory searches are not limited because the surveillance is so, so deeply pervasive. [00:14:31] Speaker 04: I know. [00:14:32] Speaker 05: I'm saying put that aside. [00:14:35] Speaker 05: Put whether the 24-7 surveillance recording, I understand you're saying that is a search. [00:14:41] Speaker 05: You're not saying that's a search? [00:14:42] Speaker 04: I'm saying that's a search. [00:14:43] Speaker 04: I'm not saying, I have put that aside. [00:14:46] Speaker 04: What I'm saying is that is what is in those tapes. [00:14:49] Speaker 04: And so if the state is going to inspect those tapes and review them under subsection B1, it's getting all sorts of... But what says you have to review a historical tape? [00:15:00] Speaker 05: Can't you just turn it on and see at this moment when I'm sitting with you, does the frame rate exceed [00:15:06] Speaker 05: or is less than 15 frames per second? [00:15:10] Speaker 05: I don't see why anything says I have to look at historical recordings. [00:15:15] Speaker 05: I can look at whether the failure notification has been turned on or off without even looking at any of the recordings, and that's requirement eight, correct? [00:15:24] Speaker 04: But the statute doesn't limit it that way, right? [00:15:26] Speaker 04: The statute gives no limits on how the government is supposed to conduct these inspections. [00:15:30] Speaker 05: Right, and I understand you're saying there are scenarios where this inspection would be wrong, but I'm asking you a specific question about [00:15:36] Speaker 05: an inspection during business hours, right? [00:15:40] Speaker 05: An inspection that checks is the recording looking at exits and entrances of the premises where firearms are displayed and points of sale. [00:15:49] Speaker 05: You could just look at it at that moment to see if the frame rate is right, if you, you know, if it's displaying the date and time, if the failure notification trigger has gone off or not. [00:16:02] Speaker 05: Right? [00:16:02] Speaker 05: You would concede that there are some inspections that would be permissible. [00:16:07] Speaker 04: I don't concede that. [00:16:08] Speaker 04: I think because of the deeply pervasive nature of this surveillance, regardless of how the government says it's going to limit its inspections, which the law doesn't have any limits on the way they conduct those inspections. [00:16:21] Speaker 06: Let me ask you about that. [00:16:22] Speaker 06: What about if audio wasn't being recorded? [00:16:25] Speaker 06: What if it was just video like when you go to the bank or when you go gambling or you go to cannabis shops? [00:16:30] Speaker 06: What if it's just video and not audio? [00:16:33] Speaker 06: Does that make a difference? [00:16:34] Speaker 04: Of course, I think that it would narrow the scope of the law, but it wouldn't eliminate the constitutional problem under the Fourth Amendment entirely. [00:16:42] Speaker 04: The Fourth Amendment does not permit continuous, suspicionless surveillance of even video monitoring of all customers as a condition of doing business, especially not as of a condition of engaging in constitutionally protected conduct, including going and talking about one's potential firearms purchases. [00:17:02] Speaker 06: There's no gun exception to the Fourth Amendment or the First Amendment, for that matter. [00:17:17] Speaker 04: But you do know that they are there, right? [00:17:19] Speaker 04: Because under the First Amendment, we're not only talking about speech protections, we're talking about speech protections of association. [00:17:25] Speaker 04: And Carpenter does talk about, Carpenter on the Fourth Amendment shows that there's a search when we are getting deeply revealing information about folks' movements, and that can be discerned simply by video. [00:17:38] Speaker 04: And with regard to speech, I mean, First Amendment association, that can be, those associations can be discerned simply by video. [00:17:45] Speaker 06: But I mean, they're in a public space. [00:17:47] Speaker 06: They are going into a public space. [00:17:50] Speaker 06: I don't know how much they can assume that people aren't going to know that they went into a gun shop. [00:17:55] Speaker 04: This is not — But we do not take off our First and Fourth Amendment rights simply by going into public — Supreme Court presidents are clear about that. [00:18:07] Speaker 04: While there may be a diminished expectation of privacy, that doesn't mean there's no expectation of privacy. [00:18:12] Speaker 04: And this is an electronic permanent recording of one's associations. [00:18:20] Speaker 04: It's not the same thing as you walking in and perhaps maybe there's a police officer around. [00:18:25] Speaker 06: Carpenter dealt with GPS. [00:18:27] Speaker 06: I mean, that's a whole different thing. [00:18:28] Speaker 06: That can tell you exactly where you've been all day. [00:18:31] Speaker 06: This is just when you walk into this public establishment. [00:18:35] Speaker 06: Carpenter, I think, is distinguishable here. [00:18:38] Speaker 06: Tell me why it's not. [00:18:39] Speaker 04: It's not distinguishable, actually, in this – because we can't put aside the fact that video audio is taken. [00:18:46] Speaker 04: This is not simply – this is not simply pings on cell phone towers about where someone's been. [00:18:51] Speaker 04: This is taking recordings of our speech, our conversations, our associations, and a lot of times – Okay, let me follow up then. [00:19:01] Speaker 06: If we took out audio, is it okay? [00:19:04] Speaker 04: I don't think so. [00:19:04] Speaker 04: And for the same reasons, it still shows all the movements inside of those businesses. [00:19:10] Speaker 04: And it's not just the protection of individuals who want to go in maybe a couple times a year. [00:19:15] Speaker 04: It's the employees that are there, the owners that are there all day long. [00:19:19] Speaker 02: Can you briefly address your First Amendment argument? [00:19:23] Speaker 02: I understand your point that 24 surveillance, especially the audio part, would have a chilling effect as a practical matter. [00:19:31] Speaker 02: But in our [00:19:34] Speaker 02: typical chilling effect cases there always is involvement of government retaliation or the government will do something there's a punishment here so this is in a kind of a weird situation can you address that [00:19:46] Speaker 04: I don't think that's quite the proper understanding of chilling effect cases. [00:19:50] Speaker 04: Retaliation claims do require some sort of evidence or proof that there's going to be retaliation against folks, but chilling effect, the Supreme Court has recognized that compelled recording of conversations and associations [00:20:05] Speaker 04: In sensitive context especially some place like a gunshot for instance Predictably and substantially chills protected speaks. [00:20:12] Speaker 04: That's objective. [00:20:13] Speaker 04: It doesn't require Retaliation and I think the district court got that wrong in its First Amendment analysis I mean, is there a particular case that that describes? [00:20:22] Speaker 02: I know they've definitely talked about chilling effect as a as a you know broader principle, but in kind of applying That law to the facts typically it's involved some kind of government, you know [00:20:35] Speaker 02: retaliation, punishment or something here. [00:20:38] Speaker 02: It's a little bit different and maybe just the nature of the 21st Surveillance is enough. [00:20:42] Speaker 02: I don't know, but it doesn't fit squarely at least based on the cases we have. [00:20:48] Speaker 04: I don't have the direct citation with me right now, but I do know that there's a distinction between retaliation cases and chilling effect. [00:20:57] Speaker 04: This is an objective. [00:20:59] Speaker 02: It's substantial. [00:20:59] Speaker 02: But some kind of punishment or something that they fear some punishment will come from the government. [00:21:07] Speaker 04: Well, certainly that's what was alleged here. [00:21:09] Speaker 04: They do fear that retaliation, but I don't think it's required that they prove that to show – to make a chilling effects case – allegation. [00:21:39] Speaker 01: Good morning, Your Honors. [00:21:40] Speaker 01: May it please the court? [00:21:41] Speaker 01: I'm Anne Bellows, Deputy Attorney General for the State of California. [00:21:44] Speaker 01: I'm here representing Appellee Rob Bonsa today. [00:21:48] Speaker 01: California adopted California Penal Code section 26806 to deter and combat gun theft from firearms dealers. [00:21:57] Speaker 01: straw purchases and illegal weapons trafficking. [00:22:01] Speaker 01: These are serious crimes and they can have deadly consequences. [00:22:05] Speaker 06: I'm sorry to interrupt you. [00:22:06] Speaker 06: I just want to go ahead and get started. [00:22:08] Speaker 06: Do you think that Section 26806B1 authorizes compliance inspections? [00:22:14] Speaker 01: My understanding is more in line with what Judge Coe described earlier, which is that there are other California statutes that authorize those inspections. [00:22:23] Speaker 01: I would direct the court to Penal Code 26900. [00:22:29] Speaker 01: 26720 and 16575 as some of those relevant statutory sections. [00:22:40] Speaker 01: And what B1 does is establish that when one of those pre-existing inspections is taking place, the firearms dealer is required to make the system available to the inspector for the limited purpose of establishing that complies with the statutory requirements of 26806. [00:23:00] Speaker 06: Can you tell me why audio is so important here? [00:23:04] Speaker 01: So the legislature made a judgment that audio would further [00:23:10] Speaker 01: with further efforts to fight and deter some of the crimes that are at issue. [00:23:14] Speaker 01: In particular, straw purchases and illegal gun trafficking prosecutions can sometimes turn on what representations were made, can sometimes turn on statements that were perceived during the event. [00:23:29] Speaker 01: And I would commend to the court the Everytown Amicus brief, which cites some of the cases that show how [00:23:35] Speaker 01: statements have been crucial to establishing criminal liability for those serious crimes and so audio recording is a feature that's available in security cameras on the private market and the California legislature wanted to make that standard so that you know under proper circumstances with the protections of a warrants or court order and [00:23:57] Speaker 01: that could be used for law enforcement. [00:23:59] Speaker 02: But most, you know, gun thefts, it's visual. [00:24:02] Speaker 02: Even straw purchases, they have to fill out forms. [00:24:05] Speaker 02: I mean, sure, can you get a little more extra information? [00:24:07] Speaker 02: Sure, if we put a camera on everybody 24-7, yes, you can get a lot more information. [00:24:12] Speaker 02: But it just seems the audio, whatever marginal benefits it provides, it's so little, yet it's so invasive. [00:24:19] Speaker 02: Well, visual, I understand. [00:24:21] Speaker 02: You know, there's gun theft. [00:24:21] Speaker 02: You can ID a person who takes it. [00:24:25] Speaker 02: Submits a false for straw perch false information and later claims that wasn't me you can see it Visual and says nope it was you who submitted this but the audio whatever you know in some you know extreme circumstances can provide additional information again it Overhear everyone's conversations Well the the conversations that will actually be gathered up are only those for which there's a warrants or court order requiring their release so the protections do come into play and [00:24:53] Speaker 01: at the moment that the government seeks access to the recordings for those purposes. [00:24:57] Speaker 02: Suppose, hypothetical, we know some acts of Islamic terrorism, some of the suspects have been radicalized at mosques. [00:25:06] Speaker 02: So could a state pass a law and say mosques should have 24-7 audiovisual surveillance for a year, maintain it, and if there's ever a crime and it's potentially linked to this mosque, the court will get a [00:25:19] Speaker 02: a warrant to grab those tapes and view them and listen to them. [00:25:23] Speaker 02: I mean, do you think that would be invasive or do you think that would have a chilling effect on people who attend the mosque? [00:25:28] Speaker 01: I think that would be a deeply problematic statute, and I think it's very different from what we have here. [00:25:33] Speaker 01: So, you know, first off... And set aside free exercise. [00:25:36] Speaker 02: I'm talking about free speech or Fourth Amendment. [00:25:38] Speaker 01: Sure. [00:25:38] Speaker 01: So first off, I think that would raise grave concerns about discrimination on religious grounds, which are, of course, a whole separate area of doctrine. [00:25:45] Speaker 02: OK, put in all religious, you know, maybe there's Christian nationalism, whatever you want to say. [00:25:50] Speaker 02: They put in all religious institutions. [00:25:53] Speaker 02: And government will get a warrant to get those tapes. [00:25:57] Speaker ?: OK. [00:25:58] Speaker 01: So I think the analysis of whether the requirement to install security cameras is a search really takes the court back to the first principles of whether it violates a reasonable expectation of privacy or whether there's a physical intrusion. [00:26:12] Speaker 01: Now, I can address the physical intrusion. [00:26:14] Speaker 01: I think that's a little different here, but it's quite clear that that would be [00:26:20] Speaker 01: much more likely to be a violation of congregants reasonable expectation of privacy. [00:26:25] Speaker 01: Here, and that's a totality of the circumstances considerations. [00:26:29] Speaker 01: So what you're asking here is whether a gun dealer has a reasonable expectation of privacy in their business premises where under a host of regulations there is nothing private about a firearms transaction. [00:26:43] Speaker 01: It's something that must be extensively documented, that is strictly regulated. [00:26:49] Speaker 02: require any business to record conversations 24-7 anywhere you are and they can record it and as long as they can get a warrant later on because they suspect you have something, they can access that a year later. [00:27:02] Speaker 02: I mean that is pretty chilling. [00:27:04] Speaker 01: Sure, but that's not what I'm saying with respect. [00:27:07] Speaker 01: What I'm saying is that you consider the circumstances of this particular requirement and this particular requirement applies to gun stores. [00:27:14] Speaker 01: which are places where deadly weapons are sold. [00:27:18] Speaker 01: And it's a place where there has been thousands of thefts of deadly weapons. [00:27:23] Speaker 01: There's been 30,000 straw purchases every year. [00:27:28] Speaker 01: And so there's a very particular, I'm so sorry, I just want to finish this. [00:27:32] Speaker 01: There's a very particular regulatory environment that the state has created to safeguard society's [00:27:40] Speaker 01: safety to the best possible and the result of that is a diminished expectation of privacy in those circumstances. [00:27:51] Speaker 02: Addresses the state's concern I think of people stealing guns Straw purchases the audio is the one to me is the troubling because I don't think you need that information The visual is the one you'll need you know you when you say most one unless you have physical description. [00:28:06] Speaker 02: It was a white Male six feet two they don't say he had a deep baritone voice I mean the audio one is the one that's so intrusive, and we really don't need that here and [00:28:18] Speaker 01: The legislature's judgment is that it did advance the goals. [00:28:23] Speaker 02: And one thing is with gun shops also there's a lot of core political speech that is involved. [00:28:28] Speaker 02: They allege in the complaint and that's true as a you know common sense matter. [00:28:32] Speaker 02: This is not [00:28:34] Speaker 02: you know, auto shop, or you're not going to have a conversation, you know, please fix my muffler. [00:28:38] Speaker 02: You go to gun shops, they have political materials, two-way materials, probably a lot of stuff that's very critical of your boss. [00:28:44] Speaker 02: Other political leaders, they talk politics and legal rights all the time, and it will have a chilling effect if they think the government can. [00:28:54] Speaker 02: You have a year's worth of everything you say, you will, people will be deterred from saying things. [00:28:59] Speaker 01: Sure, but as the court has recognized, this is not a situation the government just takes years' worth of data. [00:29:06] Speaker 01: There's very limited circumstances where the government can access that. [00:29:09] Speaker 01: And what we have in the First Amendment is a person of reasonable firmness test. [00:29:16] Speaker 01: So it's not just anything. [00:29:18] Speaker 01: You have to show that there's objective circumstances that would lead someone to believe that there could be a harm that results from their speech. [00:29:25] Speaker 01: And in this statute where there's, you know, very strict limits on access, very limited inspections and the, you know, solely for the purpose of ensuring that the system meets statutory requirements and you have all the protections of a court order or warrant to actually get a release of the recordings, there's no non-speculative harm [00:29:48] Speaker 01: that appellants can cite that could come to people as a result of their expression of views on Second Amendment, on California sub-officials. [00:29:58] Speaker 02: Just a quick follow-up question. [00:30:01] Speaker 02: Why isn't this a potential issue under our case law about the right to receive and exchange information? [00:30:08] Speaker 02: You know, the classic Lamont versus Postmaster General, that if the government makes it difficult to exchange information, [00:30:16] Speaker 02: receive information that's a First Amendment violation. [00:30:20] Speaker 01: This is in the First Amendment chilling context. [00:30:25] Speaker 01: You're referring to the case where the government was impounding materials. [00:30:29] Speaker 02: Yeah, they said, well, you just have to opt in, say, if you want communist materials, you just say, yes, I want it, and they'll deliver it. [00:30:35] Speaker 02: And the Supreme Court said, you know, okay, you can still get it, but that makes it a little more difficult. [00:30:40] Speaker 02: And the government's kind of inhibiting the free exchange of information, and that's one of the core protections of the First Amendment. [00:30:47] Speaker 01: So that goes beyond what's being imposed here. [00:30:51] Speaker 01: So in that case, the government was physically taking communications properties and withholding them until people came forward to claim them. [00:30:59] Speaker 01: really different than requiring gun dealers to install a piece of security equipment, which is actually common within the industry, and then safeguarding the recordings collected by the security camera by imposing strict limits on access. [00:31:13] Speaker 01: So I think there's a world of difference between the sort of burdens that are placed on people in order to come forward and actually receive a communication that go through several government mandated steps, [00:31:25] Speaker 01: and one in which there's a security camera, which is a common experience. [00:31:28] Speaker 01: In fact, it's common in the firearms industry to have security cameras. [00:31:33] Speaker 01: And those, too, could be the subject of a warrant or court order. [00:31:36] Speaker 02: It is. [00:31:37] Speaker 02: With private companies, it's fine. [00:31:38] Speaker 02: So when the government does, it's different. [00:31:41] Speaker 02: And as a practical matter, what would CHIL communicate free exchange of information? [00:31:45] Speaker 02: Just asking the Postal Service to say, yes, please give me this information? [00:31:51] Speaker 02: knowing that your conversation is being, especially when you're talking about political matters, being recorded, everything you say, and held by the government, held and government could potentially access it for up to years worth. [00:32:04] Speaker 02: I mean, as a practical matter, it seems like 24 surveillance would have a bigger inhibition on the exchange of information than just filling out a form to the Postal Service, please give me that information. [00:32:14] Speaker 01: In the circumstances of this statute, I would disagree. [00:32:17] Speaker 01: I think the protections that are in place in California Penal Code 26806 are quite extensive. [00:32:22] Speaker 01: And there's nothing that stops this conversation from taking place at a distance from the point of sale, at a distance from the firearms display cases. [00:32:30] Speaker 01: Maybe there's another room that's available for that sort of thing. [00:32:36] Speaker 01: If they want to have a training, they can have it at a distance from those points of recording that are strictly focused on the most sensitive moments in a firearm transaction and where these lethal weapons are being displayed. [00:32:51] Speaker 02: Are there any other laws in California or any other state that require 24-7 audio recording of private citizens who come to a place of business? [00:33:00] Speaker 01: Well, there are the cannabis business security camera requirements, which I believe are 24 seconds. [00:33:09] Speaker 03: But they don't have audio requirements. [00:33:10] Speaker 01: I don't have that at my fingertips, I'm sorry to say. [00:33:12] Speaker 03: I looked at it, they don't have an audio requirement on the cannabis. [00:33:16] Speaker 01: So that I'm able to relate to you today, no. [00:33:19] Speaker 01: But I think the California legislature had made a judgment that given the gravity of the straw purchase problem, [00:33:26] Speaker 01: or the gravity of legal weapons trafficking, that additional tool, which again is available on the private market, and there's no allegation it's not in the sorts of security cameras that are being used by firearms dealers today, that that would be part of the law enforcement benefit that they sought for the security camera. [00:33:48] Speaker 05: For the straw purchase prosecutions, you need mens rea, right? [00:33:52] Speaker 05: So you need some information about intent or knowledge. [00:33:55] Speaker 05: So the audio is critical for that perspective. [00:33:57] Speaker 05: That's correct. [00:33:58] Speaker 05: That's correct. [00:33:59] Speaker 05: And someone who just has a video could say, oh, I wasn't there to purchase. [00:34:03] Speaker 05: I was just accompanying my friend. [00:34:05] Speaker 05: My friend is the one who wanted it. [00:34:07] Speaker 05: And if you don't have the audio, you can't negate that for mens rea, correct? [00:34:10] Speaker 01: Absolutely. [00:34:11] Speaker 05: And on Rush v. Oblado, that actually challenged two statutes. [00:34:20] Speaker 05: And one of them, 1597.55E, says the unannounced visits may be made at any time. [00:34:28] Speaker 05: And section 1596.852 says any duly authorized officer, you know, can enter and inspect any place providing personal care supervision and services at any time with or without advance notice to secure compliance with or to prevent a violation of any provision of this chapter. [00:34:48] Speaker 05: So, in that case, [00:34:50] Speaker 05: They were actually challenging the statutes that authorized the unannounced inspections at any time. [00:34:57] Speaker 05: And this case is challenging a statute that doesn't authorize the inspection. [00:35:02] Speaker 05: So it may be a valid claim, but it's not targeting the right statute. [00:35:07] Speaker 05: Maybe there should be an amendment to challenge other statutes to actually get in the authorization of the inspections. [00:35:17] Speaker 01: That's correct, that the statutes that govern the inspections provide quite a lot of guidance about when, who, for what purposes, and that's all well within sort of reasonable and certain rules that the Berger test has said are fine and fine substitute for the warrant requirement. [00:35:35] Speaker 05: But if the petitioners think they're not sufficient to satisfy the Fourth Amendment, they should be able to just amend their complaint and [00:35:42] Speaker 05: litigate the new sections that actually authorize inspections. [00:35:45] Speaker 01: Well that would be a separate claim and one I don't understand them to make because it appears their concern is just an inspection of these recordings and that is compliant with the burger test for all the reasons [00:35:59] Speaker 01: that the district court described in which are laid out in our brief. [00:36:02] Speaker 01: I'd be happy to walk through that test if it's helpful. [00:36:04] Speaker 01: But I'd also like to touch briefly on Rushfield-Lado. [00:36:08] Speaker 05: But I guess I don't understand. [00:36:09] Speaker 05: If this is not the statute that authorizes the inspections, if we don't agree with the 24-hour surveillance is the recording, is the search, then I don't understand how this is the correct statute to challenge. [00:36:24] Speaker 01: I would agree with that. [00:36:27] Speaker 02: You had mentioned several statutes that you think authorize those compliance searches. [00:36:33] Speaker 02: Do they have a limit on days or times that those searches can be affected? [00:36:39] Speaker 01: They can take place during business hours, and so that... Do you know which one it is? [00:36:43] Speaker 01: I ended this up, it wasn't great, so... Yes, I do have some of those handy. [00:36:50] Speaker 01: Okay, so for the business hours, I would direct the court to California Penal Code, Section 26900. [00:36:59] Speaker 01: And then I would also direct the court to look at 11 California Code of Regulation, Section 4022. [00:37:12] Speaker 01: I'll also say, in addition to the place of the complaint where some of these are mentioned, our brief does address this. [00:37:20] Speaker 01: I can't read the page number, I'm so sorry. [00:37:22] Speaker 01: And the district court addresses this at 1ER21 and 22. [00:37:27] Speaker 02: The 26900, though, is limited to just firearm transaction record, right? [00:37:34] Speaker 02: Inspection doesn't give authority to the state to make any inspection. [00:37:41] Speaker 01: My understanding is that these all sort of happen as part of the same inspection. [00:37:44] Speaker 02: I'm just looking at the statute. [00:37:46] Speaker 02: It just refers to inspecting, quote, a firearm transaction record that's defined in section 16550. [00:37:52] Speaker 02: So I don't think the government can search a gun dealer for compliance with the video requirement based on 26900, that this is only for firearm transaction records. [00:38:03] Speaker 01: Okay, so let me point you to the 11 CCR section 4022, which I had cited, which says the DOJ, and this is not a direct quote, but a paraphrase, that the DOJ may conduct on-site inspections to determine compliance with firearms laws, and then it cites a penal code section. [00:38:24] Speaker 01: And among the things that that regulation authorizes is [00:38:29] Speaker 01: access to all records, inventory, and security features and requires the dealer to show and identify security measures and devices. [00:38:40] Speaker 01: The penal code section 16575, I do recognize this is a very Byzantine set of statutes. [00:38:47] Speaker 01: I spent a lot of time navigating through it myself. [00:38:50] Speaker 01: 17, sorry, 16575, subsection 20, [00:38:55] Speaker 01: list code sections 26600 to 29150 inclusive, and so 26806. [00:39:03] Speaker 05: I'm sorry, can you repeat that set of numbers? [00:39:06] Speaker 05: This is too many. [00:39:06] Speaker 01: Yes, I do apologize. [00:39:09] Speaker 01: So the regulation cites to firearms laws listed in penal code section 16575. [00:39:17] Speaker 01: Subsection 20 of that statute [00:39:23] Speaker 01: lists code sections 26600 to 29150 inclusive. [00:39:32] Speaker 01: And so that range encompasses 26806. [00:39:37] Speaker 02: Looking at California code 11 section 422, it doesn't impose any limitations on the hours or days, does it? [00:39:54] Speaker 01: Sorry, not that I have in my notes. [00:39:56] Speaker 01: So I think the business hours, again, this comes because these are all addressed as part of the same administrative inspection. [00:40:05] Speaker 01: I think the business hour specification is in 26900. [00:40:19] Speaker 05: So you would say look at penal code 2690011CFR4022 and penal code 16575 and then look at subsection 20? [00:40:31] Speaker 05: Is there anything else that you would refer the panel to look at? [00:40:34] Speaker 01: Yes, there are other statutes I would... What are there? [00:40:36] Speaker 01: So penal code section 26720 sets out the requirement to inspect firearms dealers at least every three years. [00:40:47] Speaker 01: And this includes the audited dealer records. [00:40:50] Speaker 01: You know, I think it sort of links them all together. [00:40:51] Speaker 01: And then Penal Code Section 28480 authorizes the DOJ to conduct on-site inspection to determine compliance with firearms laws. [00:41:06] Speaker 05: But what says they're all linked together? [00:41:09] Speaker 05: What do you look at for that? [00:41:10] Speaker 05: That's 167575 or? [00:41:13] Speaker 01: I would concede that to me the statutory language is somewhat confounding but my understanding is that's how it actually works in practice is there is an inspection scheduled by the Bureau of Firearms or in some cases a local authority if they have the, if they meet the requirements and during that inspection they comply with all of these, all of these mandates. [00:41:35] Speaker 05: And those are scheduled inspections? [00:41:37] Speaker 01: So as to at home dealers, those are scheduled inspections. [00:41:44] Speaker 01: As to brick and mortar retailers, my understanding is those may be unannounced. [00:41:49] Speaker 01: I do see that my time is up. [00:41:52] Speaker 01: I'd be happy to answer further questions. [00:41:55] Speaker 02: Great, thank you. [00:41:55] Speaker 02: Thank you. [00:42:06] Speaker 04: I would first like to take just a few moments to first respond to [00:42:10] Speaker 04: Judge Lee's question about the First Amendment chilling authorities and whether or not we have to prove some sort of retaliation in order to- Or punishment, doesn't that- Or punishment to state a First Amendment chill claim. [00:42:25] Speaker 04: I would point the court's attention to Arizona Students Association 824 F3rd and 868, where this court recognizes that the government may chill speech not just by threatening or causing harm, but by prohibiting conduct or even sometimes conducting covert surveillance. [00:42:40] Speaker 04: Would think that obvious known surveillance would even be more chilling and even the district court at 1 er 9 Had to acknowledge that we didn't record that a chill analysis did not require a showing of punishment [00:42:53] Speaker 04: simply a reasonable person would be chilled. [00:42:57] Speaker 04: I would like to then move quickly to just respond to a few things I heard my friend state. [00:43:04] Speaker 04: I think first, my friend argues that FFLs have no reasonable expectation in their firearms transactions and their business practices. [00:43:13] Speaker 04: And I think that gives away the argument, right? [00:43:15] Speaker 04: Because this law is not limited to firearms transactions and business practices. [00:43:19] Speaker 04: It's everything that happens within earshot or view of those cameras. [00:43:24] Speaker 04: And also, they talked about a particular regulatory scheme, but section 26806 is neither particular or specific. [00:43:31] Speaker 04: You can't have probable cause [00:43:34] Speaker 04: against a single industry in perpetuity. [00:43:37] Speaker 04: And that's what Section 26806 does. [00:43:40] Speaker 04: And finally, I would like to mention that the state has not shown, has not proved or argued that any straw purchase or illegal firearm prosecution was unsuccessful for the lack of speech. [00:43:53] Speaker 04: And maybe we have to get there, but I don't think so, because at the end of the day, when ordinary regulatory things exist like [00:44:01] Speaker 04: those one-side inspections, inventory audits, record-keeping transactions. [00:44:07] Speaker 04: When that exists, permanent total surveillance is not necessary under Berger. [00:44:11] Speaker 04: It just makes the government's criminal investigations more convenient. [00:44:18] Speaker 04: Thank you. [00:44:19] Speaker 02: Great. [00:44:19] Speaker 02: Thank you both for the helpful argument. [00:44:20] Speaker 02: The case is submitted, and we are adjourned for the day. [00:44:39] Speaker 00: This court for this session stands adjourned.