HELENA (AP) — A state judge has dismissed a charge of felony assault on a peace officer filed against a Helena man who was shot by a police officer while allegedly driving his pickup truck toward the officer.
District Judge James Reynolds made the decision after Brian John Temple's attorneys argued that investigators removed the windshield from the pickup before Temple's defense could run tests to determine where Sgt. Peter Callahan was standing in relation to the vehicle when he fired the shot.
"What if Temple's own testing would show Sergeant Callahan even further to the side of Temple's truck?" Reynolds asked in his ruling. "Arguably Temple cannot now effectively make this proof."
Temple still faces charges of possession of drugs, drug paraphernalia, theft and obstructing a peace officer, the Independent Record reported (http://bit.ly/rjoIBh) Friday. Authorities in Ravalli County have filed a petition to revoke Temple's probation on convictions for assault on a peace officer, theft and fraudulently obtaining dangerous drugs.
Callahan had arranged to interview Temple at the probation and parole office about a coin shop theft on May 4 when Temple ran from the office and jumped into his pickup. Callahan chased Temple and said he had to sidestep the truck to avoid being hit and then fired a shot that hit Temple in the lung.
Temple drove himself to the hospital.
Law enforcement officers conducted various tests and measurements on the windshield before removing it out of concern that it might break while the truck was impounded, Reynolds wrote in his order. But he added that Temple shouldn't have to accept the state's analysis of the windshield.
The state Justice Department's Division of Criminal Investigations cleared Callahan of wrongdoing in the shooting.
Lewis and Clark County Attorney Leo Gallagher said he is talking with the attorney general's office about whether to appeal Reynolds' decision to the Montana Supreme Court.