UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID D. WILBON, et al.,

Plaintiffs, 

v. 

 

JOSEPH M. PLOVANICH, et al., 

Defendants.

)

)

) Case No. 12 C 1132

)

) Magistrate Judge M. David Weisman

)

)

)

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ OBJECTIONS 

TO KEITH THORNTON’S DEPOSITION TESTIMONY AT TRIAL

Plaintiffs, DAVID D. WILBON, RICO M. WILBON, and GEORGE J. SMITH, by and

through their attorneys, Irene K. Dymkar, Shamoyita M. DasGupta, Daniel H. Regenscheit and

Torreya L. Hamilton, submit the following memorandum of law in further support of certain

objections to the deposition testimony of Keith Thornton, Doc. 415. In support thereof, plaintiffs

state as follows:

I. The collective knowledge doctrine does not apply to information Thornton testified

about but was not actually communicated to or between defendant police officers.

Testimony by Keith Thornton that he saw, heard, or did anything prior to arriving at the

15th District station should be excluded because it was not communicated to the defendant

officers who illegally arrested the plaintiffs. Testimony about a “show-up” and conversations

with a male and a female beat officers should also be excluded because they were likewise not

communicated to the arresting officers. Such testimony is irrelevant unless the defendants acted

on the basis of the information provided by Thornton. The collective knowledge doctrine does

not impute to the defendant officers the information contained in Thornton’s testimony. 

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The purpose of the collective knowledge doctrine is to allow police officers working

together to rely on information actually communicated between one another. See United States v.

Hensley, 469 U.S. 221, 231 (1985) (“[O]fficers, who must often act swiftly, cannot be expected

to cross-examine their fellow officers about the foundation for the transmitted information.”)

(internal quotes omitted). In some cases, where an officer has probable cause, other officers can

obey a request or order to effect an arrest. United States v. Roman, 626 F. Appx. 177, 180 (7th

Cir. 2015) (“[T]he directing officers must themselves have reasonable suspicion or probable

cause”). Similarly, knowledge of facts between officers working together and actually in

communication with one another can be imputed between them so that the collective knowledge

of the officers may justify probable cause to arrest. United States v. Lyons, 733 F.3d 777, 

782 n.1 (7th Cir. 2013) (“When law enforcement officers are in communication regarding a

suspect, . . . the knowledge of one officer can be imputed to the other officers under the

collective knowledge doctrine.”) (internal quotation marks omitted).

However, individual officers cannot avail themselves of the collective knowledge

doctrine when they are not directed to make an arrest or if no facts or nothing about probable

cause are actually communicated to them. United States v. Edwards, 885 F.2d 377, 382 (1989). 

Information constituting probable cause cannot be imputed between officers “where there is no

evidence that such knowledge was communicated to the agents on the scene who actually made

or ordered the defendant's arrest.” Id.

Probable cause is both the awareness of the commission of a crime and the individualized

suspicion of the targeted individual. See United States v. Martinez-Fuerte, 428 U.S. 543, 560

(1976) (“[S]ome quantum of individualized suspicion is usually a prerequisite to a constitutional

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search or seizure.”). Here, none of the defendant officers had or communicated information that

identified the plaintiffs as suspects of a crime for which probable cause existed. The defendants

had neither probable cause in itself nor information that combined amounted to probable cause. 

The officer issuing an arrest order must herself have had probable cause on which to

order an arrest for officers relying on that order to be justified in making the arrest. United States

v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992) (“[T]he officers issuing the order or request [must]

have an adequate basis for doing so, such that if they were present at the scene, they could

justifiably stop or arrest the suspect”). Nothing suggests the facts communicated to the defendant

officers amounted to probable cause, even in addition to the facts they perceived. Because there

is no evidence of what was actually said, speculation on what may have been said is

inappropriate. See Nelson v. City of Chicago, 810 F.3d 1061, 1074 (7th Cir. 2016) (rejecting

witnesses’ testimony on what might have been done). And the knowledge of officers working

together at a scene is not imputed in the absence of a showing that there was actual

communication. See, e.g., United States v. Ellis, 499 F.3d 686, 690 (7th Cir. 2007) (“As there

was no communication from Officers Chu and McNeil at the front door to Lopez at the side door,

it was improper to impute their knowledge to Lopez.”).

Accordingly, Thornton’s testimony of what he witnessed prior to arriving at the police

station and his testimony of a “show-up” and conversations with a male and a female beat

officers should be excluded because that information was not communicated to or between the

officers.

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II. The Court should not permit Thornton’s testimony of a phone call where objective

evidence renders his testimony legally incredible.

Thornton’s testimony that he made a phone call to 911 while following the plaintiffs in

his vehicle for over two miles, from the site of the bottle attack to the 15th District police station,

is objectively discredited by the absence of any recording of the phone call and any regularly kept

digital records automatically documenting such a call. The Office of Emergency Management

and Communications (“OEMC”) keeps logs of all 911 calls as part of its regular practice and

does not purge or destroy those logs. When a 911 call comes in, there is a voice recording of that

call and an Event Number is automatically generated. While the voice recording may not have 

been retained (in violation of the retention order in David Wilbon’s criminal case), the Event

Number and the Event history would have been retained indefinitely. 

No record of any phone call by Thornton or reflecting any semblance of the facts

allegedly communicated by him appear in any OEMC records produced in this case, and defense

counsel has been unable to find any. Defendants have produced all the audio Zone 12

communications for the time period of this event and there are absolutely no dispatcher

communications or references to a 911 call or caller following a bottle thrower. Thus, there is no 

1) audio recording of Thornton’s 911 call, 2) no audio Zone 12 communication about such a 911

call, and, most important, 3) no digital record of an Event Number and Event records

automatically generated by such a call. 

This absence of digital evidence is objective evidence that the phone call did not take

place and that Thornton’s testimony otherwise is fabrication. No reasonable juror, let alone

attorneys with an awareness of OEMC practices, could find it reasonable to believe Thornton

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made any 911 call. Thornton’s testimony about a 911 call is patently and indisputably false. 

Ethical considerations constrain the presentation of this false evidence to the jury.

Although the Court is not required to determine the truth or falsity of a fact prior to trial,

relevant “other-act evidence may not be admitted unless the evidence is sufficient for the jury to

find by a preponderance of the evidence that the other act was committed.” United States v.

Gomez, 763 F.3d 845, 853–54 (7th Cir. 2014), citing Huddleston v. United States, 485 U.S. 681,

682 (1988); see Fed. R. Evid 104(b) (“When the relevance of evidence depends on whether a fact

exists, proof must be introduced sufficient to support a finding that the fact does exist.”). Here,

the defendants cannot provide evidence from which the jury could determine by a preponderance

standard that Thornton’s phone call—the “other act” in question—actually occurred. Unlike live

trial testimony, Thornton’s recorded deposition testimony will be co-extensive with his complete

trial testimony, and so the parties and the Court are fully in possession of the details about which

Thornton can and will testify. Nothing in Thornton’s testimony or other documents or evidence

produced during discovery provides a basis to support his testimony of that he made a 911 phone

call. 

Moreover, Thornton’s testimony about his phone call is contradicted by objective

evidence and therefore legally incredible. Legally incredible evidence is evidence or testimony

which “reasonable persons could not believe” because it “contradicts indisputable physical facts

or laws.” Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995). Similarly, evidence is incredible as

a matter of law when it would have been “physically impossible for the witness to observe that

which he claims occurred, or impossible under the laws of nature for the occurrence to have

taken place at all.” United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006) (quotations

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omitted); cf. Latino, 58 F.3d at 316 (noting a district judge’s incredulity that one might sell a

Chicago Bulls ticket rather than attend the game does not meet a standard of legal incredibility). 

Thornton’s testimony is also “exceeding improbable.” See United States v. CardonaRivera, 904 F.2d 1149, 1152 (7th Cir. 1990) (finding that the “choice of whom to believe is

conclusive on the appellate court unless the judge credits exceedingly improbable testimony.”)

(italics in original). Testimony that is physically impossible or contrary to the evidence or

exceeding improbable should be excluded from the jury’s consideration. See Latino, 58 F.3d at

316; Cardona-Rivera, 904 F.2d at 1152; see also United States v. Cervante, 958 F.2d 175, 180

(7th Cir. 1992) (noting that if the testimony is “exceedingly improbable,” the appellate court will

disturb credibility determinations); United States v. Pendleton, 447 F. Appx 978, 982 (11th Cir.

2011) (noting that where testimony is legally incredible, the jury’s credibility determination

should not stand). This is not a situation therefore in which there are mere discrepancies arising

from impeachment, or inconsistent prior statements, or an improbable situation that is not

“exceedingly” so. See Ortiz v. Martinez, 789 F.3d 722, 729 (7th Cir. 2015), citing Whitehead v.

Bond., 680 F.3d 919, 926 (7th Cir. 2012); Venson v. Altanirano, 749 F.3d 641, 646-47 (7th Cir.

2014). Here there is digital, electronic evidence from defendant City of Chicago that

conclusively disproves Thornton’s testimony about a 911 call.

Legal incredibility is typically a standard used during judgment as a matter of law, where

a court may find it unreasonable to believe a critical witness. See, e.g., Burger v. Int'l Union of

Elevator Constructors Local No. 2, 498 F.3d 750, 753 (7th Cir.2007). But in such cases,

incredibility determinations are made after the witness has testified before a jury, allowing the

false testimony to impair jury deliberation. Again here, because Thornton is testifying by video,

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this Court can determine before trial which portion of his testimony are legally incredible and

exclude them before they prejudice or confuse the jury. Making a legal incredibility

determination prior to trial will avoid disrupting any jury verdict. Cf. Mejia v. Cook Cty., Ill.,

650 F.3d 631, 633–34 (7th Cir. 2011) (noting that in ruling on post-trial motions, the district

court tends to be “stuck with” the evidence presented to the jury, absent a finding of legal

incredibility). 

The plaintiffs and this Court should not be “stuck with” Thornton’s untruthful and legally

incredible testimony. Thornton’s testimony regarding an alleged 911 phone call should be

excluded. 

In addition, even if one would accept, contrary to all evidence, that Thornton’s ten to 

fifteen minute 911 call was actually made, his testimony about the call is irrelevant and provides

no probative value to determining whether the defendants had probable cause to detain and arrest

the plaintiffs. The substance of the 911 call was not communicated to the arresting officers

because there was no 911 call, and, consequently, the audio of the Zone 12 communications

(which the parties do have) does not include the dispatcher relating the substance of the nonexistent call to the defendant officers. Also, Thornton himself did not recite the information

from the 911 call to the arresting officers when he met up with them outside the 15th district

police station. 

Finally, the substance of the 911 call as related by Thornton is hearsay, that is, a statement

previously made and offered in evidence to prove the truth of the matter asserted in the

statement. Fed. R. Evid. 801(c). Defendants seek to have Thornton testify through his videotaped deposition that he previously reported to the 911 call-taker that he saw a man in dreadlocks

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throw a bottle that hit a female officer in the head and that the man entered a dark SUV in which

there were three other men, which he followed for two miles. This is being offered to prove the

truth of the matter asserted. It is hearsay and inadmissible. Moreover, because there are no

records of the 911 call, defendants cannot rely on any exception to the hearsay rule such as the

business records exception. 

For all these reasons, Thornton’s deposition testimony regarding an alleged 911 phone

call should be excluded at trial. 

Dated: June 6, 2017 /s/ Irene K. Dymkar 

 Irene K. Dymkar

Plaintiffs’ Attorneys: 

Irene K. Dymkar 

Shamoyita M. DasGupta

Daniel H. Regenscheit

Law Offices of Irene K. Dymkar

53 West Jackson, Suite 562

Chicago, IL 60604

(312) 345-0123

Torreya L. Hamilton

Hamilton Law Office, LLC

53 West Jackson, Suite 452

Chicago, IL60604

(312) 726-3173

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CERTIFICATE OF SERVICE

I, Daniel H. Regenscheit, an attorney, certify that on the 6th day of June, 2017, a copy of

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ OBJECTIONS TO KEITH THORNTON’S

DEPOSITION TESTIMONY AT TRIAL was served upon the attorneys named below through

the Court’s electronic filing system:

Dana M. O’Malley

Kristin M. Pinkston

Mark D. Winistorfer

City of Chicago Department of Law

30 N. LaSalle, Suite 900 

Chicago, IL 60602

Dated: June 6, 2017 /s/ Daniel H. Regenscheit 

 Daniel H. Regenscheit

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