Estate of Justin Paul Smith v. City of Philadelphia

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-1284
E STATE OF JUSTIN PAUL SMITH ; CHRISTINA A. SMITH , individually and as wife and co-
administratrix of the Estate of Justin Paul Smith; G IANNA SMITH , individually and as
daughter and co-administratrix of the Estate of Justin Paul Smith; L ISA G AVIN , on behalf
of her minor son, J.S.,
Appellants
v.
C ITY OF PHILADELPHIA; O FFICER CURT MC KEE
_____________________________
Appeal from U.S. District Court, E.D. Pa.
Judge Michael M. Baylson, No. 2:21-cv-04395
Before: K RAUSE , MASCOTT , and FISHER , Circuit Judges
Submitted Mar. 12, 2026;
Decided Apr. 23, 2026
_____________________________
N ONPRECEDENTIAL O PINION*
K RAUSE , 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* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.

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that, in light of the undisputed facts, McKee’s use of force was objectively reasonable, we
will affirm.1
I. D ISCUSSION2
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).

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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.

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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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