ThinkProgress: How One Woman Could Hit The Reset Button In The Case Against Darren Wilson

[Jim Lane]

25. Didn't Wilson's grand jury testimony waive his Fifth Amendment right?

He was under no legal compulsion to testify before the grand jury, for the reason you state. Having voluntarily chosen to testify about the event, he can't then draw the line wherever he pleases and refuse to answer follow-up questions on the same subject matter. He's waived the privilege. I don't do criminal law but that's my understanding of how the privilege works.

Absent a waiver, I agree with you that the mere possibility of a state or federal prosecution would trigger his right against self-incrimination. If the case is at a point where it's clear that no such prosecution will be undertaken, the family might ask both Missouri and the US to immunize Wilson; that would deprive him of the privilege.

Even if he can assert the privilege, his silence can be used against him in a civil case, unlike a criminal case.

As for the substance, he might well have qualified immunity against an ordinary negligence claim, but I was thinking of a civil rights action under 42 USC § 1983. It's not at all uncommon for individual law enforcement officers to be held personally liable under that section.

Who would pay any damage award? It might well be the town's insurance carrier. Wilson might have to pay something, though, if there's a deductible. If there's an exclusion that covers suits of this sort, he might be liable for the whole amount. Another problem is that, as I understand it, some police officers have all their assets in their spouse's name, precisely so that the assets will be beyond the reach of a judgment like this one.

Still, even if we don't have the satisfaction of seeing Wilson bankrupted, there would be a judicial determination that he was at fault. That would be worth something by itself.