{"id":167671,"date":"2026-11-13T15:41:58","date_gmt":"2026-11-13T23:41:58","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/11\/13\/ai-in-our-courts-useful-or-a-magic-8-ball\/"},"modified":"2026-11-13T15:41:58","modified_gmt":"2026-11-13T23:41:58","slug":"ai-in-our-courts-useful-or-a-magic-8-ball","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/11\/13\/ai-in-our-courts-useful-or-a-magic-8-ball\/","title":{"rendered":"AI In Our Courts: Useful Or A Magic 8 Ball?"},"content":{"rendered":"
\"\"
(Photo by CRASH:candy\/Flickr)<\/figcaption><\/figure>\n

AI is rearing its head in our courtrooms, and judges are having to decide what to make of it. Two recent decisions show a wrong way and a right way to do just that.<\/p>\n

I recently wrote about a federal district court judge in Texas, Mark Pittman, who excoriated some attorneys because he thought they used AI to draft briefs. And because he didn\u2019t like the arguments that they made. He labeled the lawyers lazy and called their arguments tortured. All before holding a hearing. It was my view that this was the wrong way to look at AI and those who use it.\u00a0<\/p>\n

Then along came an opinion<\/a> out of the federal district court for the Eastern District of Kentucky. To me, it represents the right and studied way for courts to view AI and its use. The judge there denied a motion to dismiss by a cop who allegedly relied on AI facial recognition, and only AI, to make an arrest.\u00a0<\/p>\n

The cases are factually different. One involved lawyers using AI, the other a cop. But both turn on the same question: how should a court think about AI and its use by those appearing before it?<\/p>\n

The Alleged Kentucky Facts<\/strong><\/p>\n

A Black man entered a bank in Florence, Ky., and attempted to cash what appeared to be a fraudulent check. The bank refused to cash the check, and he left. A security camera captured an unobstructed view of his face.\u00a0<\/p>\n

A local police department detective named Kilmer allegedly took a screenshot of the man\u2019s face from the footage. He then used AI facial recognition technology to match that screenshot with a booking photo on file. The cop took the booking photo and a Facebook profile image he found and compared them to the screenshot. Voil\u00e0! He concluded they all matched and that a man named Osorio was the culprit.<\/p>\n

This led Kilmer to sign a criminal complaint stating he had used \u201cinvestigatory tools\u201d to determine Osorio\u2019s identity. He didn\u2019t mention he used AI, by the way. An arrest warrant was ultimately issued and served on Osorio, a Nebraska resident, in Florida.\u00a0<\/p>\n

Osorio was then extradited to Kentucky, charged, and indicted even though he claimed the\u00a0suspect in the footage\u00a0looked nothing like him.\u00a0<\/p>\n

Eventually, the Kentucky prosecutors had to dismiss the indictment against Osorio with prejudice. Why? Because guess what, Osorio proved he was working in Nebraska when the fraudulent check was presented to the bank. Oops.\u00a0<\/p>\n

All this despite the fact that police department policy in that Kentucky jurisdiction stated that AI facial recognition technology was only advisory. And did not \u201cestablish probable cause without further investigation.\u201d<\/p>\n

Osorio didn\u2019t take too kindly to being yanked out of Florida and brought to Kentucky for no good reason. So, he filed suit in federal district court against the cop. He is asserting claims for false arrest and imprisonment under the Fourth and Fourteenth Amendments of the Constitution and Kentucky law, malicious prosecution, and assault and battery. The cop filed a motion to dismiss, arguing that qualified immunity shielded him from liability, among other things.<\/p>\n

(Of course, for purposes of deciding a motion to dismiss, the court was required to take all Osorio\u2019s allegations as true.)<\/p>\n

The Motion To Dismiss<\/strong><\/p>\n

At the risk of oversimplifying, Judge S. Chad Meredith was presented with the issue of whether AI facial recognition technology alone could support a finding of probable cause and justify issuing a warrant. Like Pittman in Texas, Meredith faced the question of whether someone, this time a cop, had used AI appropriately.\u00a0<\/p>\n

But rather than attacking the cop, Meredith looked carefully at the law. He noted that qualified immunity could shield an officer from liability. But not if he violated a federal statutory or constitutional right, and the unlawfulness of his conduct was clearly established at the time of the violation.<\/p>\n

And under the Fourth Amendment, neither probable cause nor a warrant can stand when based on materially false or misleading statements. Statements made knowingly or in reckless disregard for the truth.<\/p>\n

The facts that the cop (a) delegated the entire task of determining probable cause to AI facial recognition technology without using any independent judgment on his part and (b) made misstatements or omissions in his affidavit to support the criminal complaint were sufficient, at this stage, to support the denial of the motion to dismiss.<\/p>\n

Meredith posed an interesting hypothetical to support his findings:<\/p>\n

\n

Say that Detective Doe is called in to investigate a theft that occurred at a bank earlier in the day. As Detective Doe walks on the street in the vicinity of the bank, he uses a Magic 8 Ball to determine whether each pedestrian passerby is a potential suspect. The first pedestrian walks by, so Detective Doe shakes the Magic 8 Ball and asks whether that individual is the suspect: \u201cMy sources say no.\u201d Then, Plaintiff Peter walks by, and Detective Doe once again shakes the Magic 8 Ball and asks whether Plaintiff Peter is the suspect: \u201cYou may rely on it.\u201d Using the output from this \u201ctool, \u201cDetective Doe applies for a warrant to arrest Plaintiff Peter and states in his affidavit that he used \u201cinvestigative tools\u201d to match the suspect to Plaintiff Peter. Officers arrest Plaintiff Peter and he is charged with theft, but the charges are dropped and he is released when his alibi checks out. \u00a0<\/p>\n<\/blockquote>\n

The court noted that just because Plaintiff Peter couldn\u2019t cite a case that using the Magic 8 Ball is a constitutional violation doesn\u2019t mean relying on it was OK: \u201cAny reasonable officer would know that additional investigative work is necessary to obtain sufficient probable cause for arrest; a Magic 8 Ball alone will not cut it.\u201d \u00a0<\/p>\n

Judge Meredith concluded that while AI facial recognition technology has developed rapidly and is likely more reliable than the Magic 8 Ball, placing unquestioning reliance on it is still not much different. \u201cNo reasonable officer would think that Detective Kilmer\u2019s allegedly\u00a0exclusive<\/em>\u00a0reliance on AI is lawful \u2014 especially given how Osorio\u2019s booking photograph looks nothing like the suspect from the security camera footage.\u201d \u00a0<\/p>\n

Boom. Motion to Dismiss denied.\u00a0<\/p>\n

A Right Way To Think About AI<\/strong><\/p>\n

Meredith\u2019s decision keeps AI in its rightful place. He refused to allow it to be used as the be-all, end-all. Indeed, without saying it outright, he confirmed the need to keep the proverbial human in the loop.<\/p>\n

What the cop did was what many fear when it comes to AI. He simply relied on it too much and cut corners. Not to mention the fact that he appears to have been sneaky by saying he used \u201cinvestigatory tools\u201d to determine that Osorio was the guy. And sneaky is generous, given the police department\u2019s explicit policy that AI alone could not establish probable cause. That didn\u2019t help his cause.<\/p>\n

The difference between how the Texas judge and the Kentucky judge looked at AI and its use could not be more stark. One simply blamed the lawyers for using AI in a case where the defendant\u2019s liberty was at stake. The other carefully considered AI\u2019s role in a civil proceeding arising from a criminal matter. And the cop\u2019s use of AI without keeping a human in the loop. Meredith allowed a civil action to proceed where a person had been deprived of his liberty, even if only briefly, based on the law, not pique.\u00a0<\/p>\n

That\u2019s a right and appropriate view of AI, not a knee-jerk reaction. Let\u2019s hope more judges treat AI-related issues like Meredith and fewer like Pittman. Otherwise, we may all find ourselves behind the AI 8 Ball.<\/p>\n

\n

Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes\u00a0<\/em><\/strong>TechLaw Crossroads<\/em><\/strong><\/a>, a blog devoted to the examination of the tension between technology, the law, and the practice of law<\/em><\/strong>.\u00a0<\/p>\n

\n

The post AI In Our Courts: Useful Or A Magic 8 Ball?<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by CRASH:candy\/Flickr)<\/figcaption><\/figure>\n

AI is rearing its head in our courtrooms, and judges are having to decide what to make of it. Two recent decisions show a wrong way and a right way to do just that.<\/p>\n

I recently wrote about a federal district court judge in Texas, Mark Pittman, who excoriated some attorneys because he thought they used AI to draft briefs. And because he didn\u2019t like the arguments that they made. He labeled the lawyers lazy and called their arguments tortured. All before holding a hearing. It was my view that this was the wrong way to look at AI and those who use it.\u00a0<\/p>\n

Then along came an opinion<\/a> out of the federal district court for the Eastern District of Kentucky. To me, it represents the right and studied way for courts to view AI and its use. The judge there denied a motion to dismiss by a cop who allegedly relied on AI facial recognition, and only AI, to make an arrest.\u00a0<\/p>\n

The cases are factually different. One involved lawyers using AI, the other a cop. But both turn on the same question: how should a court think about AI and its use by those appearing before it?<\/p>\n

The Alleged Kentucky Facts<\/strong><\/p>\n

A Black man entered a bank in Florence, Ky., and attempted to cash what appeared to be a fraudulent check. The bank refused to cash the check, and he left. A security camera captured an unobstructed view of his face.\u00a0<\/p>\n

A local police department detective named Kilmer allegedly took a screenshot of the man\u2019s face from the footage. He then used AI facial recognition technology to match that screenshot with a booking photo on file. The cop took the booking photo and a Facebook profile image he found and compared them to the screenshot. Voil\u00e0! He concluded they all matched and that a man named Osorio was the culprit.<\/p>\n

This led Kilmer to sign a criminal complaint stating he had used \u201cinvestigatory tools\u201d to determine Osorio\u2019s identity. He didn\u2019t mention he used AI, by the way. An arrest warrant was ultimately issued and served on Osorio, a Nebraska resident, in Florida.\u00a0<\/p>\n

Osorio was then extradited to Kentucky, charged, and indicted even though he claimed the\u00a0suspect in the footage\u00a0looked nothing like him.\u00a0<\/p>\n

Eventually, the Kentucky prosecutors had to dismiss the indictment against Osorio with prejudice. Why? Because guess what, Osorio proved he was working in Nebraska when the fraudulent check was presented to the bank. Oops.\u00a0<\/p>\n

All this despite the fact that police department policy in that Kentucky jurisdiction stated that AI facial recognition technology was only advisory. And did not \u201cestablish probable cause without further investigation.\u201d<\/p>\n

Osorio didn\u2019t take too kindly to being yanked out of Florida and brought to Kentucky for no good reason. So, he filed suit in federal district court against the cop. He is asserting claims for false arrest and imprisonment under the Fourth and Fourteenth Amendments of the Constitution and Kentucky law, malicious prosecution, and assault and battery. The cop filed a motion to dismiss, arguing that qualified immunity shielded him from liability, among other things.<\/p>\n

(Of course, for purposes of deciding a motion to dismiss, the court was required to take all Osorio\u2019s allegations as true.)<\/p>\n

The Motion To Dismiss<\/strong><\/p>\n

At the risk of oversimplifying, Judge S. Chad Meredith was presented with the issue of whether AI facial recognition technology alone could support a finding of probable cause and justify issuing a warrant. Like Pittman in Texas, Meredith faced the question of whether someone, this time a cop, had used AI appropriately.\u00a0<\/p>\n

But rather than attacking the cop, Meredith looked carefully at the law. He noted that qualified immunity could shield an officer from liability. But not if he violated a federal statutory or constitutional right, and the unlawfulness of his conduct was clearly established at the time of the violation.<\/p>\n

And under the Fourth Amendment, neither probable cause nor a warrant can stand when based on materially false or misleading statements. Statements made knowingly or in reckless disregard for the truth.<\/p>\n

The facts that the cop (a) delegated the entire task of determining probable cause to AI facial recognition technology without using any independent judgment on his part and (b) made misstatements or omissions in his affidavit to support the criminal complaint were sufficient, at this stage, to support the denial of the motion to dismiss.<\/p>\n

Meredith posed an interesting hypothetical to support his findings:<\/p>\n

\n

Say that Detective Doe is called in to investigate a theft that occurred at a bank earlier in the day. As Detective Doe walks on the street in the vicinity of the bank, he uses a Magic 8 Ball to determine whether each pedestrian passerby is a potential suspect. The first pedestrian walks by, so Detective Doe shakes the Magic 8 Ball and asks whether that individual is the suspect: \u201cMy sources say no.\u201d Then, Plaintiff Peter walks by, and Detective Doe once again shakes the Magic 8 Ball and asks whether Plaintiff Peter is the suspect: \u201cYou may rely on it.\u201d Using the output from this \u201ctool, \u201cDetective Doe applies for a warrant to arrest Plaintiff Peter and states in his affidavit that he used \u201cinvestigative tools\u201d to match the suspect to Plaintiff Peter. Officers arrest Plaintiff Peter and he is charged with theft, but the charges are dropped and he is released when his alibi checks out. \u00a0<\/p>\n<\/blockquote>\n

The court noted that just because Plaintiff Peter couldn\u2019t cite a case that using the Magic 8 Ball is a constitutional violation doesn\u2019t mean relying on it was OK: \u201cAny reasonable officer would know that additional investigative work is necessary to obtain sufficient probable cause for arrest; a Magic 8 Ball alone will not cut it.\u201d \u00a0<\/p>\n

Judge Meredith concluded that while AI facial recognition technology has developed rapidly and is likely more reliable than the Magic 8 Ball, placing unquestioning reliance on it is still not much different. \u201cNo reasonable officer would think that Detective Kilmer\u2019s allegedly\u00a0exclusive<\/em>\u00a0reliance on AI is lawful \u2014 especially given how Osorio\u2019s booking photograph looks nothing like the suspect from the security camera footage.\u201d \u00a0<\/p>\n

Boom. Motion to Dismiss denied.\u00a0<\/p>\n

A Right Way To Think About AI<\/strong><\/p>\n

Meredith\u2019s decision keeps AI in its rightful place. He refused to allow it to be used as the be-all, end-all. Indeed, without saying it outright, he confirmed the need to keep the proverbial human in the loop.<\/p>\n

What the cop did was what many fear when it comes to AI. He simply relied on it too much and cut corners. Not to mention the fact that he appears to have been sneaky by saying he used \u201cinvestigatory tools\u201d to determine that Osorio was the guy. And sneaky is generous, given the police department\u2019s explicit policy that AI alone could not establish probable cause. That didn\u2019t help his cause.<\/p>\n

The difference between how the Texas judge and the Kentucky judge looked at AI and its use could not be more stark. One simply blamed the lawyers for using AI in a case where the defendant\u2019s liberty was at stake. The other carefully considered AI\u2019s role in a civil proceeding arising from a criminal matter. And the cop\u2019s use of AI without keeping a human in the loop. Meredith allowed a civil action to proceed where a person had been deprived of his liberty, even if only briefly, based on the law, not pique.\u00a0<\/p>\n

That\u2019s a right and appropriate view of AI, not a knee-jerk reaction. Let\u2019s hope more judges treat AI-related issues like Meredith and fewer like Pittman. Otherwise, we may all find ourselves behind the AI 8 Ball.<\/p>\n

\n

Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes\u00a0<\/em><\/strong>TechLaw Crossroads<\/em><\/strong><\/a>, a blog devoted to the examination of the tension between technology, the law, and the practice of law<\/em><\/strong>.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by CRASH:candy\/Flickr) AI is rearing its head in our courtrooms, and judges are having to decide what to make of it. Two recent decisions show a wrong way and a right way to do just that. I recently wrote about a federal district court judge in Texas, Mark Pittman, who excoriated some attorneys because […]<\/p>\n","protected":false},"author":3,"featured_media":167664,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-167671","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/167671","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=167671"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/167671\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/167664"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=167671"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=167671"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=167671"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}