Estate of Justin Paul Smith v. City of Philadelphia

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 25-1284

ESTATE OF JUSTIN PAUL SMITH; CHRISTINA A. SMITH, individually and as wife and co-

administratrix of the Estate of Justin Paul Smith; GIANNA SMITH, individually and as

daughter and co-administratrix of the Estate of Justin Paul Smith; LISA GAVIN, on behalf

of her minor son, J.S.,

Appellants

v.

CITY OF PHILADELPHIA; OFFICER CURT MCKEE

_____________________________

Appeal from U.S. District Court, E.D. Pa.

Judge Michael M. Baylson, No. 2:21-cv-04395

Before: KRAUSE, MASCOTT, and FISHER, Circuit Judges

Submitted Mar. 12, 2026;

Decided Apr. 23, 2026

_____________________________

NONPRECEDENTIAL OPINION *

KRAUSE, Circuit Judge. The Estate of Justin Paul Smith and certain family members

(the Estate) appeal the District Court’s grant of summary judgment to Officer Curt McKee

of the Philadelphia Police Department, who shot and killed Smith when responding to a

911 call. Because we conclude that the District Court did not err in determining that there

were no genuine disputes of material fact regarding the Estate’s excessive-force claim and

*

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding

precedent.

that, in light of the undisputed facts, McKee’s use of force was objectively reasonable, we

will affirm. 1

I. DISCUSSION 2

When confronted with a potentially dangerous suspect, an officer may not use deadly

force without good reason “to believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985).

We must make that assessment “from the perspective of a reasonable officer on the scene,”

Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir. 2011), keeping in mind that officers “are

often forced to make split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is necessary in a particular situation,”

Graham v. Connor, 490 U.S. 386, 397 (1989).

Against that legal standard, McKee’s use of force was reasonable under the

circumstances. As reflected in McKee’s statement of material facts, 3 McKee, in his pursuit

of Smith, encountered a distressed resident yelling at Smith to “get out of [her] house,” as

a child cried in the background. App. 116, ¶ 10. McKee thus was confronted with an

1

Appellants do not challenge the District Court’s entry of summary judgment on their other

claims, including a Monell claim, a state-created danger claim, and state-law claims for

assault and battery. See Est. of Smith v. City of Philadelphia, No. 21-cv-4395, 2025 WL

220038, at *4-5 (E.D. Pa. Jan. 16, 2025).

2

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction

under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de

novo. See CoreCivic, Inc. v. Governor of N.J., 145 F.4th 315, 320 (3d Cir. 2025).

3

Appellants contest this and other aspects of McKee’s statement of material facts with the

assertion that certain statements cannot be clearly heard on the bodyworn camera footage.

These generic assertions do not suffice to raise a genuine dispute, especially in light of this

Court’s review of the bodyworn camera footage. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).

2

individual who had forced his way into a home where a resident and young children were

present. When McKee found Smith in the kitchen, Smith repeatedly failed to obey

McKee’s lawful orders to show his hands, which were behind his back, instead yelling and

moving toward McKee. At that point, McKee reasonably opted for non-lethal force and

attempted to deploy his taser, which malfunctioned. Only when McKee saw Smith grab a

knife from the kitchen counter and lunge toward him did he use lethal force, shooting Smith

a single time.

True, it is not definitively established whether Smith in fact possessed a knife. But that

factual dispute is not material to the outcome of this case, and, like the District Court, we

need not resolve it. See Est. of Smith v. City of Philadelphia, No. 21-cv-4395, 2025 WL

220038, at *3 (E.D. Pa. Jan. 16, 2025). Instead, what matters is whether, once McKee

believed Smith had grabbed a knife, his actions were reasonable. After all, “an officer who

uses deadly force in the mistaken belief that a suspect is armed will be forgiven so long as

the mistake is reasonable and the circumstances otherwise justify the use of such force.”

Lamont, 637 F.3d at 183 (citing Graham, 490 U.S. at 396).

Here, facing a perceived deadly threat, McKee acted reasonably to protect himself and

the residents of the home. Analyzing the relevant factors, including “whether the suspect

poses an imminent threat to the safety of the police or others in the vicinity,” Santini v.

Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Graham, 490 U.S. at 396), it was

reasonable for McKee to shoot a non-compliant individual whom he believed to be armed

and who was charging at him from a few feet away. See, e.g., Garner, 471 U.S. at 3

(permitting an officer to use deadly force if he “has probable cause to believe that the

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suspect poses a significant threat of death or serious physical injury to the officer or

others”); City & County of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015) (holding

that “deadly force was justified” where a woman charged officers with a knife). In short,

the District Court correctly determined that “Smith’s refusal to comply with McKee’s

commands and his movement towards McKee provided probable cause to believe that

Smith posed a significant threat of death or serious physical injury, regardless of whether

Smith was armed with a knife.” App. 8.

Nonetheless, we must be mindful that, because Smith was “the victim of deadly force[,]

[he] is unable to testify”—testimony that might otherwise have introduced a material

factual dispute. Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) (quoting Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). For this reason, we have noted that “courts

should be cautious on summary judgment to ‘ensure that the officer is not taking advantage

of the fact that the witness most likely to contradict his story—the person shot dead—is

unable to testify.’” Id. Specifically, we “must also look at the circumstantial evidence that,

if believed, would tend to discredit the police officer’s story, and consider whether this

evidence could convince a rational fact finder that the officer acted unreasonably.” Id.

Here, the circumstantial evidence supports McKee’s testimony that he perceived that

Smith had a knife. The resident confirmed that she also saw Smith holding a knife. And

a knife was recovered from the scene near the kitchen, with overwhelming evidence of

Smith’s DNA on it. So, other evidence does not call into question McKee’s testimony that

he believed Smith had a knife, and a rational factfinder could not determine that he acted

unreasonably.

4

Appellants counter that, if McKee had “used his taser instead of his gun,” he would not

have had to use lethal force, and “Smith would have survived,” Opening Br. 3, but they

offer no authority to support a theory of excessive force so expansive as to fault McKee for

a failed taser deployment. And even if the taser malfunctioned due to McKee’s

negligence—a theory the record does not support—the District Court could not impose

constitutional liability based on mere negligence. See County of Sacramento v. Lewis, 523

U.S. 833, 848-49 (1998).

Nor does the record support Appellants’ theory that McKee is liable because he failed

to “adequately retreat[ ].” Opening Br. 8. To the contrary, the bodyworn camera footage

shows McKee backing up before he dropped the taser and discharged his firearm. In any

case, when confronted with a split-second, life-or-death decision, Officer McKee was

neither obligated to retreat nor required to exhaust every possible way to defuse the

situation. See Sheehan, 575 U.S. at 612. Given the “tense, uncertain, and rapidly evolving”

nature of a deadly confrontation, we will not “Monday morning quarterback[]” McKee’s

decision to use lethal force. 4 Lamont, 637 F.3d at 183.

II. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.

4

Like the District Court, we conclude that McKee’s use of force was reasonable and

therefore need not address Appellants’ arguments against qualified immunity. See Est. of

Smith, 2025 WL 220038, at *3 n.9. Appellants’ arguments about their “claims” under 42

Pa. Cons. Stat. §§ 8301, 8302 are similarly misplaced. See Opening Br. 11. Those

wrongful-death and survival-action provisions, respectively, are merely procedural

vehicles to recover damages, not substantive causes of action. See Johnson v. City of

Philadelphia, 837 F.3d 343, 354 n.58 (3d Cir. 2016).

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