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