Montana Man Cleared By Castle Doctrine Law After Shooting Unarmed Husband Who Confronted Him About An Affair With His Wife

We have another “Castle doctrine” case this week. The most recent case comes from Kalispell, Montana where Brice Harper, 24, gunned down Dan Fredenberg, 40, in his garage. Fredenberg (left), 40, was coming over to confront Harper (right below) about having an affair with his wife, Heather Fredenberg. Harper cut the encounter short by shooting him dead and a prosecutor has declared that the shooting cannot be prosecuted given the state’s Castle doctrine or “Make My Day” law.


On Sept. 22, Fredenberg walked into the garage to confront Harper about the alleged romantic relationship with Fredenberg’s younger wife. He was unarmed, but Harper shot Fredenberg three times. The fact that the shooting occurred in the garage rather than a few feet away on the sidewalk made all the difference. The Flathead County attorney Ed Corrigan declared that Montana’s “castle doctrine” law allowed Harper to use lethal force. He found that it was justified for Harper to run into the bedroom and retrieve his gun and return and shoot the unarmed man as self-defense: “Given his reasonable belief that he was about to be assaulted, Brice’s use of deadly force against Dan was justified.”

The Montana law reads:

45-3-103. Use of force in defense of occupied structure. (1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person’s unlawful entry into or attack upon an occupied structure.
(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

History: En. 94-3-103 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-103; amd. Sec. 1644, Ch. 56, L. 2009; amd. Sec. 4, Ch. 332, L. 2009.

As with many of these laws, Montana Castle Doctrine allows the use of force to “prevent or terminate the other person’s unlawful entry.” Since this covers cases involving the reasonable belief that a forcible felony is being committed, it is quite broad. Indeed, Corrigan stressed that under the law “You don’t have to claim that you were afraid for your life. You just have to claim that he was in the house illegally. If you think someone’s going to punch you in the nose or engage you in a fistfight, that’s sufficient grounds to engage in lethal force.”

Heather Fredenberg, 22, has since sought a restraining order against Harper, with who she admits to having an affair. She told her husband about the affair and the men had had prior angry words. Heather, a former barista that married Fredenberg after becoming pregnant, had a rocky marriage with Fredenberg. Her mother is now leading a campaign to get rid of the Castle Doctrine called “Justice for Dan Fredenberg.”

Shortly before the shooting, Ms. Fredenberg took her two boys over the Harper’s house. Fredenberg questioned her on whether she had again gone to his house but she refused to answer. She later rode around with Harper in her car to allow him to diagnose a strange sound in the engine. She then spotted her husband following her and she dropped Harper off at his house — encouraging him to go in and lock the doors. He reportedly told her that he had a gun and was not afraid of her husband. Within a short time, Fredenberg was dying on Harper’s garage floor.

I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is a generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.

Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.

The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings. As with the Harper case, these cases raise the question of whether lethal force would have been used absent the law, which is criticized as enabling certain people in the use of force. This confrontation would have likely ended in a police call and maybe a scuffle. Instead, it ended in the shooting of an unarmed man.

Source: NY Times

Kudos: Meg Beasely

73 thoughts on “Montana Man Cleared By Castle Doctrine Law After Shooting Unarmed Husband Who Confronted Him About An Affair With His Wife

  1. I agree with WHITEFALCON. Kelly should know better, but there are those ratings to get! It irritates me that Fox always features a kidnapping, or murder or crime of the month…every day of the week there are hundreds of examples they could use but notice how they pick one sensational story like the Scott Peterson murder and play it up for weeks. When will the news people learn there is a difference between ‘the publics right to know’ and the public’s NEED to know’? Kellys’s Court is just Megyn being a ‘pretend judge’ since she never made it to the bench in real life. Megyn, be a newscaster or a lawyer but not both. I want news not some crime of the week you or Fox selects. I used to work for the Dept of Corrections and could have given you TONS of stuff for your ‘court’ to argue over. Leave your law and your kids and your hubby’s book etc at home. Except for Oreilly and his constant bragging and pushing his books, none of your peers on Fox sink so low.

  2. So what did the husband think he was going to accomplish by going over there to confront the boyfriend ????? I know you are screwing my wife…. than what fight it out ??? just what the wife wanted I am sure….. he already new that the wife was cheating on him… so just get the kids leave …divorce her…. I blame her…. playing with both of these men…. shame on her… she is to blame here…. and the husband should have just moved on… took the kids… let her go live with the lover…. but domestic violence is a bad call to go on… I know….

    was there a fist fight ?? did he just walk out of the house back into the garage and shoot him ??? and why didn’t the boyfriend just lock the door and call 911 how hard would that have been…. both men were probable hot heads… big men….. lets fight over this woman…. PLEASE …. no woman or man is worth that….

    If someone broke into my home ya they might get shot…

    this was a big sex…triangle…and I’m sure she was playing both men right to the hilt… shame on her….

  3. idealist707 1, October 24, 2012 at 5:48 pm

    Dredd,
    “…peep in the keyhole on your knees.” Ah, know it well.
    ———————————————————————-
    Do you know that back in the day there were only about two hundred keys?

  4. The man came over with the intent to do bodily harm and got what he deserved!!!! How about this…..if the man never went to his house period, he would be alive today!!!! But nobody is saying that!!!!!

  5. mathew mccall 1, December 25, 2012 at 3:57 am

    The man came over with the intent to do bodily harm and got what he deserved!!!! How about this…..if the man never went to his house period, he would be alive today!!!! But nobody is saying that!!!!!
    =============================================
    Mr. mccall,

    “Shortly before the shooting, Ms. Fredenberg took her two boys over the Harper’s house. Fredenberg questioned her on whether she had again gone to his house but she refused to answer. She later rode around with Harper in her car to allow him to diagnose a strange sound in the engine. She then spotted her husband following her and she dropped Harper off at his house — encouraging him to go in and lock the doors. He reportedly told her that he had a gun and was not afraid of her husband. Within a short time, Fredenberg was dying on Harper’s garage floor.”

    Are you taking into consideration that Mr. Harper was being intentionally antagonistic, in a most inappropriate fashion, for quite some time prior to the shooting?

    Merry Christmas.

  6. When the guy went into the house to get his gun, he should have (a) gotten his gun and stayed in the house and (b) called 911 and told them to rush the hell over there and get the trespasser out of his garage and charge him with assault, trespass and whatever else they had. Then he should have sued for divorce and within a mere 20 years this all might have blown over. As it was he is innocent? Great. He’s innocent, a cuckhold is dead, his lover has a restraining order out on him, two kids are placed in the “at risk” category, and he can pretend that his conduct and his “innocence” are good for America, right?

    If we did not glorify the stupidest and most obnoxious among us we would get a lot farther along the evolutionary trail. A law that says you can kill somebody (or as in this case, OVERKILL somebody) if you are AFRAID they will assault you, should be ruled unconstitutional as depriving strangers of their life interests. The punishment for boorishness and trespass should not be murder.

  7. Oh, and about castle doctrine. If a man’s home is his castle, is a woman’s home also her castle? If she is afraid that a man (including but not limited to her boyfriend or husband) may assault or attack her, can she kill him?

  8. Um, are you guys actually serious, he was unarmed? So, your point is? Do you realize how many times people beat others to death, with fists? And Interpersonal Problems (Partner problems) are a frequent Cause, But, keep preaching about teh poor victim, and the whiny cunt shit disturber of a wife can keep playing pity rolls even though her words implied a threat

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