A Cautionary Tale From PERB: When AI Hallucinations Lead to Stricken Briefs and Lost Arguments

    In the fast-evolving world of public sector labor law, tools like generative AI promise efficiency and innovation. But as a recent decision from the Public Employment Relations Board (“PERB”) reminds us, they can also spell disaster if not handled with the utmost care. In California State University Employees Union v. Trustees of the California State University (San Diego) (PERB Case No. LA-CE-1433-H), an Administrative Law Judge (“ALJ”) took the extraordinary step of striking the employer’s pre-hearing brief from the record. The reason? Fabricated citations and quotations from a federal appellate decision that simply didn’t exist as presented—hallmarks of unchecked AI output.

    Let’s break this down step by step, because this isn’t just a procedural hiccup; it’s a wake-up call for unions, employers, and practitioners alike in California’s public safety sector.

The Case Background

    The underlying dispute centers on the employee status of residential assistants (“RAs”) under the Higher Education Employer-Employee Relations Act (“HEERA”), specifically Government Code section 3562(e). The union argued that student RAs qualify as employees entitled to bargaining rights, while the Trustees of the California State University (“CSU”) contended otherwise. In preparation for a hearing, the ALJ directed both parties to submit pre-hearing briefs addressing the legal test for employee status and the relevance of federal Fair Labor Standards Act (“FLSA”) precedents.

    CSU filed its brief on November 3, 2025, relying heavily on Marshall v. Regis Educational Corp. (10th Cir. 1981) 666 F.2d 1324 (“Marshall”)—a real case, but one that CSU misrepresented through inaccurate page citations and invented quotations. For instance, the brief claimed the Tenth Circuit held that RAs’ duties were “primarily educational rather than economic in nature” and that they “receive the greater benefit from the program.” In reality, Marshall ends at page 1328 and contains none of these phrases or conclusions. The ALJ spotted the discrepancies, issued an Order to Show Cause, and ultimately struck the entire brief as a sanction after CSU’s response failed to adequately explain the errors.

    CSU admitted to “misnumbering of pages” and “erroneously included quotation marks around paraphrasing statements,” attributing it to a failure to double-check. But the ALJ wasn’t buying it, noting that the misrepresentations went beyond mere typos—they distorted the case’s holdings in a way that aligned suspiciously with CSU’s position. Drawing parallels to Noland v. Land of the Free, L.P. (2025) 336 Cal.Rptr.3d 897, where a California appellate court sanctioned counsel for AI-generated fabrications, the ALJ emphasized that such “hallucinations” undermine the integrity of legal proceedings.

Why This Matters for Public Safety Unions

    For unions representing California’s firefighters, police officers, corrections staff, and other public safety workers, this ruling underscores a critical lesson: diligence in legal advocacy isn’t optional. PERB proceedings, like those under the Meyers-Milias-Brown Act (“MMBA”) or the Dills Act, demand precision because the stakes—bargaining rights, working conditions, and member protections—are high. Imagine a grievance over shift differentials or safety equipment where a union’s brief gets tossed due to sloppy AI use. Not only does it weaken your position, but it could invite scrutiny or countersanctions that distract from the merits.

    More broadly, this decision signals PERB’s intolerance for shortcuts in an era where AI tools like ChatGPT are tempting for drafting research summaries or arguments. As the ALJ pointed out, citing CSU’s own AI guidelines, it’s the attorney’s responsibility to verify content. In public sector labor, where decisions often set precedents affecting thousands of members, relying on unvetted AI could erode trust with arbitrators, boards, or courts. We’ve seen similar pitfalls in federal cases, but this is one of the first in California’s public employment arena—and it happened to a major employer like CSU, which should know better.

    The potential ripple effects? Expect heightened scrutiny of briefs in PERB and related forums. Unions might see employers trying to exploit AI for aggressive positions, only to backfire as in this case. On the flip side, it empowers unions to challenge dubious citations, turning the tables in discovery or hearings. And for ongoing debates like student employee status—relevant if your union deals with campus safety personnel—this ruling keeps the focus on statutory language over manufactured precedents.

Lessons Learned and Best Practices

    CSU’s misstep highlights how overreliance on AI technology can backfire.  AI is a tool that must be used carefully. It’s a substitute for human research and must be verified. Always cross-check citations, quotes, and summaries against primary sources. Tools like Westlaw or Lexis are irreplaceable for this. Follow the State Bar’s guidance on AI, which stresses competence and candor. Don’t let “enhancements” from AI platforms slip through without review. Labor organizations, and lawyers alike, should establish protocols for AI use, including safeguards for confidential information and verification policies. If you spot hallucinations in an opponent’s filing, don’t hesitate to call it as doing so will strengthen your case.

SB 747: An Unwarranted Expansion of Liability Against California Peace Officers

Senator Scott Wiener (D-San Francisco) announced Senate Bill (SB) 747, the deceptively named No Kings Act, to purportedly hold federal ICE officers accountable for violating people's Constitutional rights. Unfortunately, this legislation suffers the same fatal flaws as SB 627's restrictions on facial coverings in that the legislation will not be enforceable against federal officers but will significantly harm to our California peace officers. 

SB  747;s proposed amendment to the Tom Bane Civil Rights Act (CA Civil Code § 52.1) will unleash a torrent of new civil liability on the shoulders of California's peace officers while stripping away critical safeguards like the specific intent requirement that has long distinguished the Bane Act from its federal counterpart in 42 U.S.C.  section 1983.  

SB 747 adds a new subdivision (d) to the Bane Act that mirrors federal section 1983, creating state-law liability for any person acting “under color” of law who deprives a person of their federal constitutional rights without the qualified immunity protections under Section 1983.  Although proponents characterize the measure as a modest codification of existing case law describing the Bane Act as the “state equivalent” of section 1983, the proposed language is neither redundant nor innocuous. It represents a deliberate and substantial enlargement of liability California officers will face. Without the Bane Act’s current requirements of threats, intimidation, or coercion and without any specific intent element, this bill creates a much easier pathway to sue peace officers in state court, and applies existing Bane Act venues, orders, and fee-shifting applied to these new claims.

Existing Law: The Bane Act’s Distinct and Narrower Scope

Under current law, a plaintiff seeking damages under Civil Code section 52.1 must prove that the defendant interfered, or attempted to interfere, by threats, intimidation, or coercion with the exercise or enjoyment of rights secured by the federal or California Constitution or laws. In the context of peace officer liability, California courts have consistently held that this statutory language imposes an additional element beyond a mere constitutional violation, i.e. the defendant must act with specific intent to violate the plaintiff’s constitutional rights (or, in certain Fourth Amendment seizure cases, with reckless disregard for those rights). Austin B. v. Escondido Union School Dist., 149 Cal.App.4th 860 (2007). 

SN 747 represents a significant expansion in liability from the current framework where courts emphasize that the Bane Act was "intended to address only egregious interferences with constitutional rights" requiring "deliberate or spiteful" conduct. Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947 (2012). Moreover, while qualified immunity is unavailable under the Bane Act for peace officers acting under color of state law, the heightened intent standard has served as a functional substitute, shielding officers from liability for good-faith errors in rapidly evolving situations.

SB 747’s Proposed Subdivision (d): A New and Broader Cause of Action

Senate Bill 747 would add the following language to Civil Code section 52.1:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage of the United States or of this state, subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the United States Constitution, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

This text is lifted almost verbatim from 42 U.S.C. section 1983. The legislation contains none of the existing Bane Act’s limiting elements, such as the requirement of threats, intimidation, or coercion, nor the specific-intent requirement. The new subdivision would therefore create a parallel and independent cause of action within section 52.1 that plaintiffs could plead in the alternative, allowing them to bypass the safeguards that have defined Bane Act jurisprudence for decades.

Why This Matters to Public Safety Agencies and Officers 

The legislative digest confirms the intent: the bill “would also provide” a state-law remedy “similar” to section 1983 for deprivations of federal constitutional rights under color of law. The measure further extends to subdivision (d) claims the same expansive venue provisions, injunctive remedies, and one-way attorney-fee shifting that already apply to traditional Bane Act actions.

SB 747 would remove that hurdle for subdivision (d), replacing it with a lower threshold akin to section 1983’s objective reasonableness standard and doing so without any qualified immunity defense in state court. This dramatically raises litigation risk for line officers and agencies. Thus, SB 747 would transform the Bane Act from a statute aimed at coercive and intentional misconduct into nearly a strict-liability regime for any constitutional deprivation committed under color of law. 

Senate Bill 2 originally attempted to accomplish a similar result by eliminating the specific intent requirement. David E. Mastagni successfully testified against the elimination of the specific intent requirement in Senate Judiciary Committee. Chair Thomas Umberg and the Democratic party forced amendments to SB 2 that preserved the specific intent requirement, a compromise this bill seeks to reverse. 

Sovereign Immunity: The Bill’s Targeted Federal Officers Are Largely Immune

Proponents suggest that the amendment is necessary to hold federal immigration enforcement officers accountable in state court. That justification collapses under even cursory scrutiny. Federal officers acting within the scope of their official duties are protected by federal sovereign immunity from monetary claims brought under state civil rights statutes.

While ICE officers may also receive qualified immunity for immigration enforcement activities, the more fundamental barrier to lability is sovereign immunity. Committee for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F.Supp.2d 1177 (2009). Federal agencies and officers acting in official capacity cannot be sued under state civil rights statutes. State of Cal. v. U.S., 104 F.3d 1086 (1997) held that "California's claims against the United States premised on impact of federal immigration policy were barred by sovereign immunity to extent that monetary awards were sought." Because immigration enforcement remains a core federal function, sovereign immunity protects federal officers from state civil rights liability for conduct within their official duties. See also Arizona v. U.S., 567 U.S. 387, 401-402, (2012)(holding the United States has a “single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders.”)

Thus, SB 747’s expansion is unlikely to affect ICE officers acting within the scope of federal immigration duties, meaning the bill’s practical impact will fall primarily on the state and local officers protecting our communities. As with the failed mask-mandate provisions of SB 627, SB 747 is a symbolic shot at federal ICE agents that will almost certainly only impact California’s state and local peace officers-making their jobs more difficult.  

Conclusion

California’s peace officers have repeatedly demonstrated that meaningful accountability and officer protection are not mutually exclusive. SB 747 abandons that balance.