Sunday, April 14, 2024

Wrongful death complaint filed against WPD alleges negligence, mishandling of Val D’Auvray investigation

Wilmington Police Department (Port City Daily photo/Alexandria Sands)

NEW HANOVER COUNTY — Eighteen months after the Wilmington Police Department closed the case on the death of Joseph Valentine Flor D’Auvray III, his father has filed a Superior Court complaint claiming the agency enabled the wrongful death of his son through gross negligence.

READ MORE: Complaints against WPD officers ‘sustained’ in Val D’Auvray’s death case

ALSO: Val D’Auvray death ruled accidental, WPD closes case

Joseph Valentine Flor D’Auvray III, known as “Val,” was found dead outside of TRU Colors Brewery around 9 a.m. on April 18, 2022. Four months later on Aug. 26, WPD wrapped their investigation and ruled the death accidental, claiming Val fell from the building’s roof. 

His father, Joseph Valentine Flor D’Auvray II, filed the Superior Court complaint on Thursday, Feb. 29, shortly before North Carolina’s two-year statute of limitations closes for wrongful death claims. 

“I’ve already been told by a lot of people that are involved with the city municipality that nothing is going to change the way the police operate, but I want to call them out,” D’Auvray told PCD. “That’s the bottom line. I want an apology. I want a discovery. And if my son was possibly murdered or not I’d like to know.”

His allegations against WPD include the failure to act on a missing persons report he filed six days before his son’s death, failure to respond to risk of harm the night before his son died, repeated dysfunction and false statements throughout the investigation, and neglecting vital evidence. 

D’Auvray wrote in the complaint: “I am providing documentation of justification for the court to allow for discovery as to what happened prior to his death and the aftermath of the investigation that followed,” 

The 13-page document includes a report from a former FBI investigator, emails between D’Auvray and WPD, a previous complaint to the agency, and letters from WPD’s internal investigations into two officers involved in the case. 

On Aug. 16, the agency’s Internal Affairs division “sustained” D’Auvray’s complaint that Corporal William Ostrsoky failed to enter the missing persons report. In WPD policy, it means “the allegation is true and indicates improper conduct on the part of the employee investigated.”

On Aug. 31 — five days after WPD closed the investigation into Val’s death — Internal Affairs also found claims against Det. Jameson Hutchins for on-duty performance sustained. D’Auvray alleged Hutchins failed to investigate crucial evidence and persons of interest; in one example, he claimed the detective took five weeks to contact an individual whose name and number were written on a sticky note in Val’s wallet.

D’Auvray also alleged Hutchins made false statements to him throughout the investigation, including claims about Val’s actions the night before his death that were later contradicted by body cam footage.

However, he was exonerated on allegations related to truthfulness — which means “the allegation is true, but the employee’s action was justified, lawful, and proper.”

Lt. Greg Willett — WPD’s public information officer — told Port City Daily he could not answer specifics about the recently filed complaint or IA investigations because he did not know details of the case and is bound by personnel policy. 

D’Auvray told PCD his central argument is that proper procedure leading up to Val’s death would have saved his son’s life. He does not know if Val’s death was an accident, but it is not the focus of his Feb. 29 Superior Court motion.

General surgery physician assistant Jeffrey Probst viewed Val’s body on April 18, a little over an hour after the reported time of death. He determined the cause as a blunt force head injury from falling off the roof or fence and stated there was “no obvious sign of foul play or suicide.”

Eighteen days later, Dr. Jeffrey Falls’ May 6 autopsy determined “blunt force head injuries” consistent with a fall as the cause of death. The forensic pathologist noted the finding was based on the examination and “circumstances surrounding the death, as currently understood.”

There are some discrepancies between the reports, such as additional injuries throughout Val’s body reported in the autopsy. D’Auvray said the examiners weren’t provided important context — including footage of Val saying he was being chased and feared for his safety the night before his death and testimonies from persons of interest. He told PCD both examiners said other causes are possible.

PCD reached out to Probst, Falls, and the NC Office of the Chief Examiner to ask for more details but did not receive a response.

While D’Auvray believes more information about the cause of death could be revealed as the process continues, his objective is accountability for procedural failures and protecting people in similar future situations.

“We may never find out what really happened to Val and to speculate is to no avail,” D’Auvray told PCD. “However, the system totally failed him, and I believe could have prevented his death.”

The process

D’Auvray put forward the motion “pro se,” meaning he is representing himself without a lawyer. For the past two years, attorney Jim Lea has advised D’Auvray pro bono, but told PCD he is unable to draft or file legal matters on the case without serving as a formal legal representative. 

D’Auvray said the time commitment necessary for a potentially long, drawn-out trial with a powerful government entity has made it challenging to get an attorney on the case. 

Because D’Auvray did not claim damages, Lea said it would be more accurate to refer to the motion as a complaint rather than a lawsuit — although that could change as the process continues. D’Auvray told PCD monetary damages are not his concern unless he hires a lawyer who requires a contingency fee.

“This is not what this is about,” D’Auvray said.

The New Hanover County Sheriff’s Office will serve the complaint to WPD; a court worker told PCD Friday it had not yet been served. The city attorney or outside counsel will then likely file a motion to dismiss the complaint with a Superior Court judge, Lea told PCD.

“We’ll see what happens,” Lea said. “I mean, you never know. There’s been plenty of pro se lawsuits that have been filed that survive.”

If the judge denies the motion to dismiss, the case will go to discovery, an information exchange between parties in which D’Auvray can ask WPD questions and request relevant documents. 

After the information is gathered, the judge will review the material in a motion for summary judgment. If the judge determines the facts constitute a claim against WPD, the case will move to a jury trial.

Lea said issues such as sovereign immunity law — which grants government entities immunity from civil damages in a number of circumstances  — make it an expensive, difficult, and risky case for any legal representation. He also noted uncertainty about the cause of death and social stigma — since Val struggled with addiction — as potential obstacles.

However, the attorney corroborated D’Auvray’s testimony. He emphasized WPD’s failure to respond to the missing persons report, which requires law enforcement to enter the individual in question into the National Crime Information Center (NCIC) to identify them upon a police encounter.

“The heart of the matter is they had a missing persons report,” Lea said. “They should have checked it.”

Val struggled with addiction and received medication-assisted treatment at Coastal Horizons. After completing a six-week hospital detox and evaluation, Val was supposed to move to the Hope Recuperative Care facility, but left on April 2, 2022. 

D’Auvray told PCD a nurse at the facility told Val to contact his father when he departed, but Val responded: “I have to figure this out for once on my own.”

After 10 days without hearing from Val, his father filed the missing persons report to WPD on April 12. Five days later, Val encountered police officers at an assisted living facility, Accordius Health of Wilmington. They ran his name through a database but did not come across the missing persons report, which would have required the police to contact Val’s family.

“If they had just done that, he’d be alive,” Lea said.

MORE: Family of man found dead at TRU Colors wants answers

ALSO: Judge orders release of body camera video involving man found dead on local brewery’s property

The police encounter

After the missing persons report issue, D’Auvray lists “failure to help a citizen in obvious jeopardy” as his second reason for filing the complaint.

In July 2022, Superior Court Judge Frank Jones ordered body cam footage showing Val’s interaction with WPD in an outdoor section of Accordius Health the day before his death. The video shows police officers responding to a nurse’s 911 call regarding trespassing at the facility.

Val told the police he was homeless, being chased and “hiding for my life.” He did not know why or who was after him and believed his pursuers may have had weapons.

“Sorry I came by here, but I was just hoping maybe that I had a moment to where I could just get to somewhere lit up and safe,” he told officers, according to the video.

When police returned to the car to run Val’s information, one said in the footage: “Well, so he’s saying that he was being chased and he’s sweating pretty bad.”

Another officer responded, “It’s not like he was calling for help,” and argued Val was breaking into the building.

While looking through traffic and drug-related charges on Val’s record, an officer said “typical homeless shit” and determined “if he’s clean we’ll tell him to kick rocks.”

D’Auvray’s complaint contains a November 2022 report by Frank Brostrom of Cape Fear Investigators Inc., previously an FBI investigator for 27 years. He was hired by Lea in 2022 to independently look into Val’s death. Brostrom interviewed Tanika Rowley, the nurse at the facility who made the 911 call.

“Rowley does not believe the white male was being unjustifiably paranoid at the time,” Brostrom stated in the report.

According to the report, Rowley did not believe Val was under the influence of drugs and seemed distressed when he appeared at the front door of the facility.

Brostrom wrote the nurse later determined Val was likely unrelated to several other homeless people who were attempting to enter the facility through other doors the same night. Rowley did not want Val to return and trespass but also did not want him to be arrested. 

The officers told Val he would be arrested for trespassing if he returned to the building.

“I understand,” Val responded as he got up to leave. “Honestly, I might have to do that if it comes down to it, just so I can get away from them.”

“You need to let people know that you need help that you’re being chased,” an officer responded. “You can’t just try to get into a building, you know what I mean.” 

Val said he wasn’t trying to get in the building, but wanted to temporarily stay in a location with lighting; the officer responded he should try to get somewhere lit and he could flag police in the area if he saw his pursuers again.

According to Brosrom’s report, Rowley heard about Val’s death shortly after and did not understand why the police ordered him to leave without calling his family or providing assistance.

WPD policy section 2.10, titled “Assisting those in Need,” states: 

“Officers shall always be alert for and compassionate to those who are experiencing a crisis/emergency situation, lost, helpless, stranded, injured, or ill. When necessary, appropriate assistance shall be rendered or arranged by an officer.”

Brostrom told PCD he could not speak about specifics of the case for confidentiality reasons. However, he argued WPD’s policy needs to be contextualized by the difficulty in determining which situations constitute an immediate threat.

“That still has to be prioritized, right, and sometimes they can’t,” he said. “Because, you know, there’s a mass shooting or there’s a robbery or there is something major going on. I mean, they just can’t do all that because they don’t have the personnel to do it.”

Addiction and homelessness are broader social issues, Brostom noted, which have “overwhelmed” police and make prioritization more difficult in high crime areas. In July 2023, WPD Chief Donny Williams told city council maintaining full staff has been difficult for the agency. 

D’Auvray disputed the argument that WPD may have been unable to address Val’s concerns due to insufficient personnel or more urgent duties.

“That wouldn’t make any sense,” he said, noting there were multiple officers involved in the interaction who did not receive urgent calls at the time Val expressed fear for his safety.

Policy and procedure

Val’s body was found on the property of TRU Colors Brewery; it shuttered five months later. Then-CEO George Taylor said surveillance footage was not operational at the time. 

D’Auvray argues WPD failed to investigate the surrounding area, such as potential surveillance footage at nearby businesses, and persons of interest with important information. 

His complaint alleges Det. Jameson Hutchins made a number of false statements, such as the claim that Val was unstable and without a shirt or shoes during his April 17 interaction with WPD. D’Auvray wrote the detective told him Val was breaking into the facility and that police offered to take him to the hospital but Val refused. 

The bodycam footage shows Val fully clothed — although he was without a shirt and shoes when his body was found a day later — and speaking to police in a stable manner. The footage shows Val in an outside section of Accordius Health; Brostrom’s report and the video show Val looking for a temporary place to seek safety rather than break into the facility, and do not show police ever offering to take him to a hospital.

Thomas Tilmon, WPD’s former criminal investigations supervisor, was transferred out of the division while the investigation was ongoing. Tilmon serves as captain; WPD currently lists him as a lieutenant, which according to the department communication specialist Brandon Shope is due to the city website not being updated since Tilmon’s change in rank.

Lt. Leslie Irving previously told PCD Tilmon’s transfer was part of a captain rotation among all captains that “had nothing to do with the case.” 

D’Auvray disagrees, arguing Tilmon mishandled the investigation and was among officials who falsely told him he would not be able to review body cam videos and 911 calls. 

In late August 2022, Val’s family and Lea believed they were going to discuss these concerns when summoned to District Attorney Ben David’s office. Instead, they were told the case was being closed.

“David acted like he was not familiar with the details of the case so I briefed him with everybody there for about 10 minutes on an overview,” D’Auvray told PCD.

PCD reached out to David but did not receive a response. First assistant district attorney Barrett Temple said it would be inappropriate to comment because no criminal charges were brought forward and the DA’s office was not involved in the investigation.

Wallace police chief Jimmy Crayton, North Carolina Association of Police Chiefs district VII regional director (which covers New Hanover County), told PCD the DA’s office would become involved if the IA investigations determined allegations against officers qualified as criminally negligent, not sustained or exonerated.

Crayton added WPD’s policy and procedures undergo rigorous inspection through the Commission on Accreditation for Law Enforcement Agencies.

“Being an accredited agency is a really, really good thing,” he said. “Not only for the agency, but for the community because it holds the agency and its officers to the highest of standards. And if they’re found to be operating outside of those standards, they can lose their accreditation.”

He recommended reviewing WPD’s policy manual to better understand the agency’s operations; the section on “Truthfulness,” of which Hutchins was exonerated, states:

“Employees shall always give truthful statements regarding matters within the scope of employment, the employee’s suitability for employment, and/or operations of the department. In these regards, a statement should not be made unless an employee is sure of its truthfulness.”

Crayton did not know details of the case, but said families who lost a loved one in uncertain circumstances “are always going to ask questions, as they should.”

The issue moves forward as Val’s brother, Xan Callihan Flor D’Auvray — a musician with 165,000 TikTok followers — repeatedly posts viral videos in a campaign he calls “Justice for Val.”

In a recent post with 76,000 views, he argued the case represents bigger social problems regarding the treatment of addicts and homeless people.

His father views the issue similarly. 

“We all are human,” he told PCD. “We all need help. How do you differentiate between who you help and who you don’t help?”

[Ed. note: The article has been updated to reflect Tilmon is a captain, not lieutenant as listed on WPD’s website, and to include Lt. Irving’s statement that the transfer was part of a captain rotation. PCD regrets the error.]


Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.

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