An attorney for the City and County of Honolulu used a fictional legal citation in an attempt to sway a state judge to prevent a high-profile class-action civil rights case from being heard by a jury, court documents show.

David Sgan, a veteran Hawaiʻi lawyer and deputy corporation counsel for Honolulu, acknowledged his error only after lawyers with the American Civil Liberties Union pointed out that the city had relied “on non-existent caselaw to assert a rule that does not exist.”

The underlying suit, against the city and former Honolulu Police Chief Joe Logan, involves allegations that the police department engaged in a pattern of arresting people who weren’t intoxicated for driving under the influence. The ACLU alleges the police committed numerous civil rights violations by making the arrests.

The ACLU wants to take its case to a jury, which Sgan opposed in a brief based on the fictional legal citation. Sgan later asked the court to disregard the spurious legal argument and invoked a different justification in a new motion to oppose a jury trial.

How the error happened is the subject of dispute. 

In a statement, Honolulu Corporation Counsel Dana Viola chalked up the error to sloppy lawyering. But the ACLU has another take. The organization said in a court filing that the error has the hallmarks of a growing problem in the legal system: lawyers drafting briefs with the use of artificial intelligence, which is known to misstate what cases say or make up cases entirely.

Wookie Kim, legal director for ACLU Hawaiʻi, declined to comment. Sgan could not be reached. In a statement, Viola blamed the problems on “drafting errors,” not AI.

Regardless, the error is a big one, said Ken Lawson, who teaches professional responsibility at the University of Hawaiʻi’s William S. Richardson School of Law. 

“One, you have a rule to be competent,” Lawson said, citing the Rules of Professional Conduct governing lawyers. “Two, you know a rule of doing due diligence, right, making sure that you do your homework. And then, three, you have a duty of candor with the court.”

If Sgan committed the errors on his own, not because of AI, that makes it even worse, Lawson said.

Hawaiʻi Circuit Court Judge Karin Holma has scheduled a hearing to decide whether the case can be heard by a jury on Wednesday. The hearing also will provide insight into whether the Hawaiʻi state judiciary is going to hold Hawaiʻi lawyers accountable for making mistakes when citing cases.

Misuse Of AI By Lawyers Is Growing

The use of so-called “AI hallucinations” by lawyers is an escalating problem. The French researcher Damien Charlotin has documented 304 court decisions globally, up from 230 as of July 30, in which “generative AI produced hallucinated content — typically fake citations, but also other types of arguments.” That total includes 195 in the U.S.

The Georgia Court of Appeals in a recent order said the practice goes beyond merely promoting cynicism about the legal system.

“The opposing party wastes time and money in exposing the deception,” the court said. “The Court’s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents.”

State and federal rules of civil procedure allow judges to impose sanctions against attorneys who make false statements to the court. 

Some judges have used that to discipline lawyers for using AI to draft briefs. A federal judge in May levied $31,100 in sanctions against lawyers who used AI tools to create a brief containing a half dozen hallucinated citations. On Aug. 14, after a lawyer submitted a brief with fictional AI-generated citations, an Arizona federal judge referred the case to the bar association where the lawyer was licensed, removed the lawyer from the case and revoked the lawyer’s permission to practice law in Arizona.

While Hawaiʻi federal judges have drawn a hard line, the Hawaiʻi state judiciary has done little. A committee is studying the problem, with a final report due in December. In the meantime, judges are addressing the problem case by case. So far, state courts have refrained from imposing stiff penalties — or any penalty at all.

In one recent case, a lawyer with one of Hawaiʻi’s most prestigious firms submitted a brief that he later admitted he researched and drafted using AI, one in which all six of the cited cases were flawed. The cases either didn’t exist or didn’t say what the lawyer claimed. State Circuit Court Judge Kelsey Kawano ruled in the lawyer’s favor anyway and imposed no sanctions.

Suit Alleges Pattern Of Police Arresting Sober Drivers

In the current ACLU class action suit, the organization outlines an alleged pattern of Honolulu police officers stopping and arresting sober drivers.

“HPD officers continually arrest drivers who show no outward signs of impairment, perform well on field sobriety tests, and who often blow 0.000 on breathalyzer tests,” the suit says. “From 2022 through 2024, HPD arrested 127 people who had a blood alcohol content (“BAC”) of 0.000 after a breath or blood test.”

Motivating the officers, the suit argues, is a “one-and-done” policy that lets night-shift officers quit work early but still get paid for a full overnight shift once they have made a DUI arrest.

The suit points to the arrest of Sarah Poppinga. Police pulled her over after she left the Whole Foods parking structure at Ward Village and forgot to turn on her headlights. The suit alleges officers duped Poppinga into declining to take a sobriety test, then arrested her for not taking the test. Officers drove her to the police station, where she passed a breathalyzer test and was released.

The ACLU wants a jury to hear Poppinga’s story and others like it. 

After the city filed its motion citing the fictional case, ACLU attorney Emily Hills went to great lengths to find the case at the center of the city’s argument.

Hills couldn’t find the case by using the citation in the city’s brief, so it appeared the case didn’t exist at all, Hills says in a declaration filed with the court.  After lengthy research that included checking hard-copy books at the Hawaiʻi Supreme Court Law Library, Hills did find a series of cases with the name in the city’s citation, Chun v. Employees’ Retirement System. But they have nothing to do with the right to a jury trial, Hills wrote.

The ACLU’s examination of other cases in the city’s brief found “sizeable discrepancies between what the opinions said and how the City characterized them in its Motion,” she wrote.

In a brief that contained those observations, the ACLU concluded that the city’s citations of Chun and other cases were the result of AI hallucinations.

“Both the City’s reliance on a fake case for a rule that contradicts actual binding caselaw, and its misinterpretations of the real cases it cites — that together are suggestive of AI misuse — provide an independent basis to deny the City’s motion” to prohibit a jury trial, the ACLU said in its brief. 

In her statement, Viola said there are cases that support the city’s interpretation of the law, which her office should have referenced.

But her office didn’t include any such cases in its follow-up brief. Instead, Sgan raised an entirely new argument for opposing the jury trial. He apologized “for the inaccurate and untethered citations to the Chun decision” and admitted the “propositions that follow are not supportable by Chun.”

“Please disregard,” he concluded.