NEW HANOVER COUNTY — A Superior Court judge dismissed a Hampstead man’s wrongful death complaint against the Wilmington Police Department without prejudice, noting the case could be reopened if filed in the appropriate manner.
READ MORE: Superior court judge delays wrongful death hearing of Val D’Auvray, WPD wants extension
Val D’Auvray submitted a wrongful death complaint against WPD in February, alleging the agency failed to carry out appropriate procedures in critical instances related to the lead-up and investigation of his son’s death.
The plaintiff’s son, Joseph Valentine Flor D’Auvray III, known as “Val,” was found dead outside the former TRU Colors Brewing on Greenfield Street on April 18, 2022. Four months later, WPD ruled the death an accident, saying Val fell off the building’s roof.
D’Auvray cites two WPD internal investigations and a report from an FBI investigator in his complaint, which alleges the agency:
- Failed to file a missing persons report submitted by D’Auvray six days before his son’s death
- Failed to respond to risk of harm in an encounter with Val the night before
- Neglected crucial evidence in the following investigation
- Repeatedly made false statements to the victim’s family
Superior Court judge Frank Jones permitted WPD’s motion to dismiss the complaint at a Thursday hearing, but noted his decision was not due to the merits of the case. He noted he granted a request from D’Auvray to release body cam footage related to the incident two years ago, which he had watched.
D’auvray represented himself pro se. His complaint did not include monetary damages, but requested discovery for additional information from WPD related to Val’s death.
Attorney Trey Ferguson of New Bern-based Sumrell Sugg served as WPD’s legal counsel. The hearing was originally scheduled for April 3, but judge Kent Harrell delayed the proceeding, as WPD had yet to file a motion in response.
After the hearing, Ferguson requested a 30-day extension to file a motion. He attributed it to confusion with “this type of complaint” and the need for further review. D’Auvray didn’t request traditional forms of relief include in a civil action, such as monetary damages.
At the hearing, Ferguson invoked governmental immunity, which protects government agencies from liability from suits related to employees working in an official capacity. The doctrine has exceptions, such as proof an officer acted with malice, but the attorney argued the complaint didn’t contain an argument to override the law.
“Based on claims filed, there’s no allegations about wavering immunity or anything about immunity, and so it’s appropriate to dismiss,” Ferguson said.
From his understanding, Ferguson said the factual basis of the complaint is the alleged mishandling of a missing persons report, which enabled Val’s death. He said it was difficult to understand the type of relief D’Auvray sought in the case, and didn’t believe a civil complaint was the appropriate means of providing more information about WPD’s potential failures in the case.
“What he is trying to do here, it appears to us, is asking the court to intervene in an internal affairs investigation,” Ferguson said.
Ferguson also cited “public duty doctrine” from the 1991 NC Supreme Court case Braswell v. Braswell, which found law enforcement agencies are not liable for failing to protect individuals. Ferguson noted there are exceptions to the ruling, such as special agreements to protect specific individuals, but argued the complaint didn’t contain evidence of such.
“A police officer doesn’t have a general duty to protect the public, an actionable duty that could give rise to a tort claim,” the attorney argued.
D’Auvray responded his claims related to the missing persons report were not “alleged,” because they were substantiated by a WPD internal investigation. He added Ferguson’s argument did not mention a second WPD internal investigation, which substantiated allegations of failures related to “on-duty performance” by one of the case’s lead detectives, Jameson Hutchins.
D’Auvray argued the evidence he presented is expansive enough to justify WPD provide him more documentation about its actions before and after his son’s death. He emphasized he wanted answers about why WPD was able to make false statements to his family throughout the investigation.
Jones agreed with WPD’s legal counsel that the filing was legally deficient, adding D’Auvray did not use the appropriate avenue to move the complaint forward. A future filing would need to include a more specific form of relief and address legal defenses related to governmental immunity.
“Speaking colloquially, he’s arguing the legal sufficiency of your plea while your arguments are to the substance,” Jones said at the hearing.
The ruling allows D’Auvray to recraft his legal approach to reopen a future case.
“The ‘without prejudice’, sir, means that under appropriate circumstances you may refile,” Jones told D’Auvray at the hearing. “Without giving you legal advice, please understand the failure to cure defects may result in a dismissal that would operate as a final disposition.”
Jones and Ferguson expressed sympathy for D’Auvray’s loss before the judge closed the hearing. Afterwards, D’Auvray told PCD he was grateful to Jones for reviewing the evidence and being a fair-minded and impartial judge.
D’Auvray said he is in communication with an attorney and is planning to eventually file an updated complaint.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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