Before Terry, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Peter H. Wolf, Motions Judge)
In this case, appellant Delgo Taylor filed a wrongful death and survival action against the District of Columbia, alleging that "[t]he District  owed a special duty to [her son, Lawrence Taylor], an informant for the Metropolitan Police Department ("MPD") and an individual who assisted the police in arresting and prosecuting a known dangerous criminal. . . .";and that the District's negligence in failing to properly protect Mr. Taylor was the proximate cause of his murder, his pain and suffering, and her loss as well as that of his minor child. The trial court granted summary judgment in behalf of the District. Ms. Taylor filed a timely appeal. We affirm, concluding that Ms. Taylor failed to present evidence showing that her son satisfied the "justifiable reliance" prong of the special relationship test, or that he was an informant for the MPD; and thus, did not refute the District's evidence establishing, as a matter of law, that the police owed him no special duty of protection.
The record before us shows the following assertions by appellant, as the basis of her legal action against the District. After Martinez Crowder, a close friend of Mr. Taylor's brother, was murdered in December 1992, Mr. Taylor became an informant for three MPD detectives, Gary Mock, Joseph Fox and LaJuan Lynch. Mr. Taylor provided one detective with information that was critical to the arrest of Antoine Fice Ackwith, who was believed to have murdered Mr. Crowder. In addition, Mr. Taylor relayed the addresses of crack houses located in the Montana Terrace Apartments in the Northeast quadrant of the District, and assisted in the arrest of Rafael Parker, *fn1 a person thought to be the head of a Montana Terrace drug gang. The police were alerted to threats made against Mr. Taylor's life. Around April 14, 1993, Mr. Taylor was shot in the buttocks by Mr. Parker. Both Mr. Parker and Mr. Ackwith were arrested the following day. However, Mr. Ackwith was released from custody on April 27, 1993, apparently because frightened witnesses refused to testify against him. Although the police knew that Mr. Ackwith was free and had lived in the Montana Terrace area, they failed to warn Mr. Taylor. Subsequently, on May 2, 1993, Mr. Taylor was fatally shot when approximately eighteen bullets penetrated his body.
The District denied that Mr. Taylor was an informant for its police detectives. It also denied that it owed any special duty to Mr. Taylor, or that it had entered into a special relationship with him.
After Ms. Taylor's case had progressed through the discovery stage, the District filed a motion for summary judgment, contending in part, that Ms. Taylor had "no evidence to prove that [her son] had a special relationship with the Metropolitan Police Department. . . ." Attached to the motion were several exhibits, including affidavits from detectives. Detective Fox's affidavit acknowledges that he spoke with Mr. Taylor concerning Mr. Crowder's murder, but makes no mention of using Mr. Taylor as an informant. Detective Thomas B. Shaw stated: "To the best of my knowledge, Lawrence Taylor was not a paid or unpaid informant for any member of the Metropolitan Police Department during the investigation of Martinez Crowder." Detective Ray A. Crawford, who was in charge of the investigation of Mr. Taylor's murder asserted: "Based on my working relationship with the detectives of the Fifth District and the homicide detectives, I would have been notified if Lawrence Taylor was acting as a paid or unpaid informant for any District or Homicide detectives in the Metropolitan Police Department." He also declared: "Nothing in my investigation of Lawrence Taylor's homicide led me to believe that [Mr.] Taylor was acting as a paid or unpaid informant for Detective Fox in the investigation of the homicide of Martinez Crowder." Furthermore, he denied that Mr. Taylor was an informant for either Detective Mock or Detective Lynch. Detective Mock categorically denied that Mr. Taylor served as an informant for him: "Never at any time did Lawrence Taylor act as a paid or unpaid informant for me."
Ms. Taylor's opposition to the District's summary judgment motion relied on several affidavits and depositions. An Assistant United States Attorney, Ronald L. Walutes, declared that: "Detective Joseph Fox told me that Mr. Taylor had been assisting him in the investigation of the Crowder murder. I believe this occurred after the murder of Lawrence Taylor." This affidavit was consistent with the government's April 19, 1994 pleading in opposition to a motion to sever defendants charged with the murder of Mr. Taylor, which was attached to the Joint Pretrial Statement in this case as one of plaintiff's exhibits. In that pleading, signed by Mr. Walutes, the government states that [Mr.] Taylor was "target[ed]," in part, because he "was assisting the homicide branch [of the Metropolitan Police Department] in their investigation of [Martinez Crowder's] homicide. . . ." Elkaner Douglas, a resident of the Montana Terrace apartments, who witnessed Mr. Taylor's murder, stated that he "called 911 and was told that the police were already aware of the emergency." The mother of Mr. Crowder said that she and Mr. Taylor met with Detective Fox at least ten times to discuss her son's murder and that, "[o]n occasion, [Mr. Taylor] passed on information about the murder of [her] son."
Perhaps the most extensive details about the alleged contact between Mr. Taylor and Detective Mock appeared in the affidavit of Joseph Bassil, whose mother lived in the Montana Terrace apartments. Mr. Bassil accompanied Mr. Taylor to the police precinct one day during Summer 1992 after Mr. Parker and another person shot at him. He heard Detective Mock ask Mr. Taylor "to get him a list of crack houses at Montana Terrace." When Mr. Bassil objected on the ground that "it could get [Mr. Taylor] killed," Detective Mock told Mr. Bassil to mind his business. Later, he observed Mr. Taylor recording some addresses and "using [Mr. Bassil's] mother's telephone to communicate these addresses to Detective Mock." On another occasion, he witnessed Detective Mock picking up Mr. Taylor in an unmarked car, and saw Mr. Taylor return with food and $40 or $50.
Mr. Taylor's brother, Boyd Taylor, stated that he was unaware that his brother was assisting the police, but that he once saw a police drug raid in progress and when his brother ran out of an open-air drug market, the police made no effort to stop him. Similarly, Ms. Taylor's affidavit indicates that she "had no contemporaneous knowledge of [her son] assisting the police in the investigation of criminal activity or the murder of Martinez Crowder at Montana Terrace." However, when she met Detective Mock on the day of her son's murder, "Detective Mock told [her] that he had just left [her son] and when he heard that [her son] had been murdered, he rushed back to Montana Avenue."
Also included in Ms. Taylor's exhibits in opposition to the District's summary judgment motion was an affidavit from Dr. R. Paul McCauley, plaintiff's expert witness. He asserted, in part, that: "[T]he applicable national standard of care regarding the safety of confidential informants is the Schuster *fn2 standard. Schuster says that when an informant collaborates with the police in the arrest or prosecution of criminals and it reasonably appears that the informant is in danger due to his collaboration, the police have a duty to provide a bodyguard or some other appropriate police protection." The "other appropriate police protection" included notification by telephone or in person that Mr. Ackwith would be released, a short-term witness program, or temporary relocation within the District. Dr. McCauley also mentioned standards promulgated by the Commission on Accreditation for Law Enforcement Agencies, Inc. (Standard Number 42.2.9 "requir[ing] mandatory written policies and procedures on using confidential informants"), and the International Association of Chiefs of Police (e.g., Model Policy on Confidential Informants, and Concepts and Issues Paper on Confidential Informants).
While none of the exhibits presented by Ms. Taylor, in opposition to the District's motion for summary judgment, set forth facts detailing Mr. Taylor's personal reliance on any assurances of protection by the police detectives, her memorandum declares, in part,
[A] jury could reasonably infer that, in light of Mr. Taylor's fear of guns and the fact that he did not possess a gun at the time of his death, that he received assurances from Detectives Fox and Mock that it was safe to return to the Montana Terrace Apartments after he had been shot in the buttocks by Rafael Parker and though he no longer lived in the neighborhood. [F]or example, Detectives Mock and Fox may have told Mr. Taylor that it was safe to return to Montana Terrace since both Ackwith - - charged with the brutal murder of Crowder - - and Rafael Parker were both in jail. Because Detectives [F]ox and Mock affirmatively used Mr. Taylor to assist them in their criminal ...