PHILADELPHIA - The City of Philadelphia has defeated a federal wrongful death lawsuit that says police should have tasered a man instead of shooting him.
Officer Curt McKee's taser malfunctioned after he responded to calls of a fight on Belgrade Street in 2018, leading to the fatal shooting of 41-year-old Justin Paul Smith. His estate lost its case against the City and others when Philadelphia federal judge Michael Baylson on Jan. 16 granted summary judgment to the defendant.
The sides disputed whether Smith had a knife behind his back when confronted by McKee.
"The undisputed record shows that Smith repeatedly refused to show his hands despite McKee's multiple commands," Baylson wrote.
"McKee first attempted to use a taser, which malfunctioned, and then Smith advanced towards McKee with his hand behind his back. McKee reasonably interpreted Smith's actions as posing an imminent threat."
McKee's actions were justified considering Smith may have been armed and violent and would not show his hands, Baylson wrote.
Smith's wife Christina, daughter Gianna and mother Lisa Gavin filed suit in 2021 in the Philadelphia County Court of Common Pleas, and the defendants later removed the case to federal court.
The suit says Smith barricaded himself inside a house and sought more than $1 million.
McKee arrived on Belgrade Street on Dec. 5, 2018, at 8:47 a.m. when a civilian said "Yo, cop, look at him. He is going in the house!"
McKee asked the resident of the house if Smith lived there. They responded to "get him out of here" and held the door open for the officer.
"Who is this guy," McKee asked.
"I don't know who this guy is," the resident responded, prompting McKee to tell Smith to leave.
Smith was leaning against a sink in the kitchen and refused to leave. McKee pointed his taser at him and told Smith to show his hands at least nine times, but Smith replied, "Get the f--- out of here" and refused to show them.
McKee's taser failed. Smith moved forward. McKee shot him one time.
McKee said Smith had access to knives in plain view next to him and kept his hand behind his back. The resident told McKee they had seen Smith holding a knife.
The lawsuit centered on training policies for tasers and firearms, and that Philadelphia's policies were inadequate and McKee's actions unjustified.
Baylson said Smith's refusal to comply with McKee's commands and his movement towards the officer provided probable cause to believe Smith was seriously threatening McKee.
"Because 'the evidence would not support a reasonable jury finding that [McKee's] actions were objectively unreasonable,' this Court grants summary judgment," he wrote.
Gregg Zeff of The Zeff Law Firm LLC in Mount Laurel, N.J., represents the plaintiffs.