From Thursday’s Report and Recommendation in Virgil v. Experian Info. Solutions Inc. by Judge Mark Dinsmore (S.D. Ind.):

[T]his is the third time in the last year that the Undersigned has faced a similar issue. We live in a world of rapid technological advancement. A world in which many individuals have concerns that their jobs may be replaced by increasingly educated machines.

The practice of law is not just a job, it is a profession; a profession with standards and ethical responsibilities. One of the most troubling aspects of these situations is the lack of respect for the profession, and the lack of respect by the offending attorneys for their own personal capabilities, that these situations represent.

One would expect that, when individuals choose this profession, they do so in part because they believe they have some talent for the work. One would expect that, after several years of law school, and more years of practice, those attorneys believe they bring some level of value to their clients beyond that of a machine. Yet these situations represent an abdication of those personal and professional responsibilities to those very machines, which to date have not proven themselves up to the task.

While the Undersigned has long recognized the value of the proper and efficient use of technology, my confidence in the profession and the generations of lawyers who have shaped it prevents me from believing that it can ever be replaced by a machine, no matter how advanced. However, the preservation of that profession requires ever increasing levels of diligence and vigilance from each and every attorney and judge involved in the process. Absent that, someday clients may well be better off accepting advice from a machine as opposed to a careless and inattentive attorney. That is a day the profession of law must not allow to come to pass….

Some more details on the particular transgressions in the case:

At the hearing, Mr. Policchio acknowledged that he was fully responsible for the errors in the [five] briefs that he signed and filed. Mr. Policchio was contrite and did not attempt to excuse his lapses in any way; indeed, his reaction to his own failures is best described as mortification. By way of explanation—but not as an excuse—Mr. Policchio explained that he had grossly underestimated the time that litigating this case against dozens of defendants would require and that he was overwhelmed by the workload. In addition, for monetary reasons, Mr. Policchio had terminated his access to LEXIS, which he was accustomed to using for legal research and cite-checking. The Undersigned believes Mr. Policchio’s representation that he has now taken appropriate measures to ensure that no such lapses will occur in the future.

Mr. Policchio’s response to the position he finds himself in is commendable. However, that does not change the fact that Mr. Policchio finds himself in this position because he failed to take the most basic of actions—checking the citations in his own briefs before filing them. As discussed below, this failure constitutes a failure to satisfy a fundamental obligation of an attorney to his client and to the Court.

{The Court notes that most of the cases cited below involve AI-generated hallucinated citations. Mr. Policchio’s explanation for the errant citations in his briefs does not involve the use of AI. Rather, Mr. Policchio stated that the errors were the result of cutting and pasting from documents Mr. Policchio had saved into a case management program when working on prior cases. It is unclear to the Court how that process could have resulted in non-existent citations being created, but the distinction is irrelevant. The issue in this and the cited cases is not the use of AI to assist in legal work; it is the failure to review the validity and content of the cases cited in briefs filed with the Court.} …

The Undersigned, regrettably, has faced this issue in two other cases in the past year. In the first, monetary sanctions of $6,000 were imposed for three briefs containing hallucinated citations. {The Undersigned recommended a $15,000.00 sanction in that case: $5,000 for each of three briefs that contained non-existent citations. The District Judge reduced the sanction to $6,000, taking into account “the steps [the sanctioned attorney] has taken ‘to educate himself on the responsible use of AI in legal practice’ and adhere to ‘the highest standards of professional conduct moving forward.'”} In the second, the Undersigned has recommended a $7,500 sanction for a brief containing hallucinated citations. The attorney’s objection to that recommendation remains pending…. A multitude of other cases around the country have dealt with the same issue….

Given the distressing number of cases calling out this conduct—citing to cases in court filings without checking the accuracy of the citations—it is clear that the imposition of modest sanctions has failed to act as a deterrent. Accordingly, the Undersigned RECOMMENDS that Mr. Policchio be sanctioned $10,000.00 for his Rule 11 violations in this case. The Court finds that no lesser sanction will serve the necessary deterrent purpose…. In addition, the Undersigned REFERS the matter of Mr. Policchio’s misconduct in this case to the Chief Judge pursuant to Local Rule of Disciplinary Enforcement 2(a) for consideration of any further discipline that may be appropriate. Mr. Policchio is ORDERED to provide a copy of this order to his client, … and to file a certification that he has done so within seven days of the date of this order.

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2/16/1833: Barron v. City of Baltimore decided.

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If the Federal Bureau of Investigation (FBI) wants to scrutinize a person or organization, it must meet certain legal standards demonstrating evidence to support suspicion of criminal activity before opening an investigation.

Well, sort of. It turns out that if the feds can’t meet the bar to justify an investigation, they can move ahead by calling their surveillance efforts “assessments.” Then, they can use the assessments to justify full investigations—assuming FBI agents care to follow the rules to begin with, which is not always the case. That’s led to the feds snooping on roughly 1,100 religious figures, journalists, activists, and public officials in recent years.

Assisted by the Cato Institute, about four years ago, Reps. Jamie Raskin (D–Md.) and Nancy Mace (R–S.C.) asked the Government Accountability Office (GAO) to look into the use and abuse of FBI assessments as end-runs around restrictions on investigative authority. Cato then sued for more information about assessments. The lawsuit proceeds, but the GAO did produce a “for official use only” report intended to be read and destroyed by recipients. Fortunately, Racket News‘s Ryan Lovelace got hold of a copy and wrote it up—and the Cato Institute posted the report to the internet.

Snooping ‘Without a Particular Factual Predication’

According to the GAO, “the Federal Bureau of Investigation (FBI) can open assessments with an authorized purpose and clearly defined objective and without a particular factual predication.” That’s a pretty low bar for delving into people’s lives. By contrast, “initiating an investigation requires predication, such as allegations, reports, facts, or circumstances indicative of possible criminal or national security threatening activity.” According to the Attorney General’s Guidelines for Domestic FBI Operations, published in 2008, “assessments may be carried out to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence.” But they can also be used as a gateway to higher threshold investigations.

Assessments come in several forms. Per the GAO report, Type I/II are targeted at individuals and organizations “relating to activities…constituting violations of federal criminal law or threats to the national security.” Type III look at “actual or potential threats within a field office’s area of responsibility,” Type IV at “internal FBI information gaps,” Type V assess targeted individuals’ suitability and credibility as sources, and Type VI seek information regarding foreign intelligence. Type I/II and III are considered the most concerning categories and “the FBI opened approximately 127,000 Type I/II and Type III assessments, comprising about 124,000 Type I/II and 2,800 Type III assessments from calendar year 2018 to 2024.”

Assessments Become Investigations for Half of Cases Targeting Religious and Political Figures

According to the GAO, “about 14 percent of Type I/II assessments were converted into an investigation, which has different requirements to open.” But that conversion rate can go higher when it involves domestic political concerns: “Assessments concerning categories of individuals or organizations specified in the Domestic Investigations and Operations Guide (e.g., domestic political candidate or religious organization) are designated as sensitive investigative matters (SIM.)” Also included in the SIM category are public officials, political organizations, and journalists. “Among the approximate 1,100 Type I/II assessments with SIM designation, the FBI converted 48 percent into investigations in contrast to 14 percent of all the approximate 124,000 Type I/II assessments into investigations.” In short, “sensitive” assessments are much more likely than others to become full investigations.

Between 2018 and 2024, according to the GAO report, “the FBI designated approximately 1,100 Type I/ll and 100 Type III assessments as SIMs.” Those numbers included members of the news media, political candidates, political organizations and prominent members thereof, religious figures, academics, and (the largest category) public officials.

‘The FBI Can Gather a Dossier on Anyone They Choose’

“Today, the FBI can gather a dossier on anyone they choose. And the amount of information available is so much broader than anything J. Edgar Hoover could have imagined,” Mike German, a former FBI special agent, told Racket News’s Lovelace.

The FBI occasionally reviews its internal performance and its agents’ adherence to guidelines. It’s not surprising to learn that a government agency that found the rules for initiating formal investigations too restrictive sometimes has difficulty coloring within the lines when it comes to the looser standards for assessments. “Of the 988 Type I/II assessments and ‘information only’ incidents reviewed from 2018 through 2024, approximately 5 percent included instances of insufficient authorized purposes and approximately 7 percent included instances of unauthorized investigative methods,” according to the GAO report. Abuses weren’t confined to a few agents or rogue offices. Twenty-four of the 56 FBI field offices reviewed from 2021 to 2024 had at least occasionally used unauthorized investigative methods for “information only” purposes used to decide whether to open assessments.

When reviews found evidence of such abuses, the results weren’t shared with other offices to discourage similar transgressions. That’s a problem because “of the 15 FBI field offices that received a National Security Reviews in 2023, eight received an identical recommendation pertaining to noncompliance with the requirements for an authorized purpose.” FBI agents far and wide aren’t just violating restrictions on assessments, they’re breaking the same rules in the same ways.

Worse, observes the GAO report, “The FBI relies on staff to self-report noncompliance with assessment policy requirements. The FBI noted that self-reporting likely undercounts actual noncompliance, but has not assessed if other tools could identify it.”

Assessments are ‘a Bill of Rights-Related Crisis’

So, we know the FBI created a looser set of rules for scrutinizing the public and it admits that its agents are abusing even those eased restrictions. But that’s probably only the tip of the iceberg.

“What should be obvious now is that the FBI’s misuse of Assessments represents a Bill of Rights-related crisis of far greater proportions than the equally objectionable Foreign Intelligence Surveillance Act (FISA) Section 702 electronic surveillance power, which is set to expire on April 20, 2026,” warns Patrick G. Eddington, a senior fellow at the Cato Institute and former CIA analyst. “Now would be an excellent time for Congress to initiate a Church Committee-style review of every single existing surveillance program being employed by executive branch elements.”

The FBI has frequently been caught spying on Americans. It’s obvious the feds are dedicated to continued domestic snooping, even if that requires working around restrictions on their activities.

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In a video of a late-January incident in Minnesota, federal immigration officers sped past an Immigration and Customs Enforcement (ICE) observer’s vehicle and swerved to box her in. While the driver called someone and asked them to dial 911, agents approached with weapons drawn and ordered her out of her car. She was taken into custody, only to be released later after an agent received a phone call and diverted to meet the local police chief.

From a citizen’s perspective, the encounter is frightening and tense. From the perspective of someone who spent years wearing a badge and operating within jurisdictional limits, it raises deeper concerns. The issue isn’t that enforcement occurred, but that it appears to have taken place without clear authority, restraint, or purpose.

The video is not an outlier. A growing body of footage shows similar patterns in federal immigration enforcement. Many of these encounters are initiated without a clear legal basis, then escalate rapidly, with agents using force that conflicts with widely accepted law enforcement standards. In one case, an agent punches an individual in the face during an attempted detention, even though the person does not appear to pose an immediate threat. In others, chemical agents are deployed on individuals already pinned to the ground by multiple officers, sometimes sprayed directly into the face at close range. People are being struck by canisters or other objects. Pepper-ball munitions are fired at distances that appear to violate use-of-force protocols.

Modern law enforcement training is explicit about these risks. Force stacking, prolonged prone restraint, and unnecessary escalation with chemical agents are repeatedly identified as dangerous and, in some cases, deadly. These are core principles taught across agencies because their value is clear and unambiguous.

Taken together, these encounters suggest more than isolated judgment errors. They point to a broader pattern of authority being exercised without sufficient legal grounding or professional discipline. 

A federal badge does not confer universal authority or “absolute immunity,” as some wrongly claim. Authority is contextual; it must be tied to a lawful mission, jurisdiction, and conduct. When those elements are absent or unclear, it is not sufficient to dismiss the resulting conduct as an unfortunate mistake. Many of these encounters appear to involve agents operating outside their authority, in ways that should demand discipline and accountability.

In many of these videos, encounters are initiated with U.S. citizens engaged in constitutionally protected activity: filming, speaking, standing nearby, or questioning authority. Those actions do not create detention power. Filming officers is not interference; verbal criticism is not obstruction; refusing an unlawful command is not resisting.

Every police academy teaches the same foundational rule: If you do not have lawful authority to detain, you cannot use force. Escalating force does not create authority where it did not exist before. It cannot be a substitute for legal justification. Yet in these encounters, escalation often appears to come first, followed by claims of resistance that are then used to rationalize the force that followed.

Officers are trained to avoid this dynamic. We are taught about officer-created jeopardy—the idea that officers are responsible for decisions that unnecessarily create danger. Initiating physical contact when disengagement is available, escalating verbal encounters without tactical need, or inserting oneself into a situation without a lawful purpose all increase risk. Courts understand this. They do not freeze the frame at the moment force is applied. They examine how that moment came to be; the totality of the circumstances.

Use-of-force policy also makes clear that officers must de-escalate after control is achieved. Earlier resistance does not justify continued force. Spraying chemical agents into the face of a restrained individual is not de-escalation. Holding someone prone while layering force tools is not decisive enforcement. This is exactly how people get seriously injured or killed.

Any working officer watching these videos should ask a simple question: What would happen if I handled an encounter this way? What if I deployed chemical agents on someone already prone and pinned? What if I escalated without clear detention authority? Would I be praised, or would I be investigated, disciplined, or fired?

The glaring violations and contradictions present in these incidents take a toll on local law enforcement, who must respond to everyday calls against a backdrop of renewed fear and distrust. The public does not distinguish between badges or agencies. They remember the coercion, not the jurisdiction. 

None of this criticism is meant to be anti-law enforcement. It is pro-professionalism. Policing depends on legitimacy. Patterns of agents overstepping, escalating unnecessarily, or treating force as a shortcut to control weaken the legal and moral foundation that allows law enforcement to function at all. Many officers see what is happening and know it is wrong. Now is the time to speak up.

It is not too late for federal immigration agencies to correct course, but doing so will require clear policy enforcement, real accountability, and a recommitment to disciplined, improved training and lawful policing. If the current trajectory continues, they may do irreparable damage not only to public trust, but also to the credibility of law enforcement more broadly.

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