POLSON — A Pablo man who shot and killed Johnny McKeever after he appeared in the middle of a September night on the shooter's doorstep won’t be charged with any crime.

After gathering evidence for nearly two months, including a reenactment of the shooting done by state investigators, Lake County Attorney Steve Eschenbacher said Tuesday he didn’t believe he had the evidence needed to convict Ryan Black, 28, of any charge.

Black shot McKeever in the head with a .44 Magnum pistol from two to three feet away sometime after 4 a.m. on Sept. 16.

According to a lengthy press release from the county attorney’s office, here is what happened:

McKeever came to Black’s home shortly after 4 a.m. in order to confront his estranged wife, who McKeever knew was having an affair with Black.

McKeever banged on the door hard enough to crack the door frame.

Black, a recovering paraplegic who normally uses braces to get around, wasn’t wearing them at the time of the encounter. He appeared at the door with a .44 Magnum pistol to confront McKeever.

Eschenbacher said McKeever had been drinking that night and had a blood alcohol level twice the legal limit to drive. Black and McKeever’s estranged wife had also been at bars in Missoula earlier that night.

When Black went outside, Eschenbacher said McKeever punched him in the right eye. Black said as he fell backward, the pistol fired and killed McKeever. McKeever’s wife attempted CPR while Black awaited the police that had been called by a friend staying at the house.

The first call to 911 was made at 4:25 a.m. Law enforcement arrived on the scene six minutes later.

Eschenbacher said Black made several statements to police immediately after the shooting that weren’t consistent with the facts, including the pistol’s placement when it was fired.

Black claimed the pistol fired when he was falling backward after being struck. He also told police the pistol was at waist level, which would have meant that McKeever was ducking and turning when the gun fired, according to the position of the entrance wound to McKeever’s head.

“Much of these inconsistencies can be explained by the emotional state he was probably in having just shot someone,” Eschenbacher wrote in the press release. “The fact that they are inconsistent is not proof of a lie...''

Eschenbacher said that law enforcement’s best practices call for waiting two days for an interview after a justified shooting by a police officer in order to give the shooter time to fully comprehend what he has done.

Eschenbacher said Black had not claimed self defense as of Tuesday.

Black was arrested and charged with deliberate homicide. He was later released on his own recognizance after appearing in court.

In making his decision not to prosecute, Eschenbacher said he had to consider the fact that McKeever came to the residence in the morning after he had been drinking and that his estranged wife had told Black that McKeever had been violent in the past.

The fact that McKeever struck Black even though he was holding a weapon would allow Black’s defense to raise the issue of justifiable force, which would shift the burden to the state to prove that Black had acted unreasonably, Eschenbacher said.

“Montana’s castle doctrine relating to justifiable use of force would apply in this case and a jury would have to find beyond a reasonable doubt that Mr. Black’s actions were unjustified,” Eschenbacher wrote. “This may not be possible based on the evidence that is at hand at the moment.”

Eschenbacher said if the state prosecuted Black for negligent homicide and lost, the case against Black could not be retried.

“The purpose of prosecution is not to simply throw a case at a jury to decide whether or not reasonable doubt exists,” Eschenbacher wrote. “It is to present the best case they can to support that proof beyond a reasonable doubt has been met to... prove the case.”

Eschenbacher said he didn’t believe “at this time” that the state can prove beyond a reasonable doubt that the killing of McKeever was unjustified and dismissed the charges against Black without prejudice, which would allow the case to be recharged if new evidence were presented.

“The county attorney has an ethical obligation not to file charges that he does not believe are supported by probable cause or have a reasonable likelihood of resulting in a conviction,” Eschenbacher wrote. “This incident is a tragedy and we regret the loss of life and sympathize with the family of the deceased.”

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