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
Lazy DA
Or on the draw bridge?
how about the front porch?
Bruce:
“If the garage isn’t attached to the house does the castle doctrine still apply?”
**************************************
Depends on whether or not it’s within the moat. 😀
If the garage isn’t attached to the house does the castle doctrine still apply?
Oh, let’s see. Cuckolded husband is shot by paramour while standing in paramour’s garage and the paramour continues to pursue the widow even after the homicide. Reasonable apprehension of fear for safety or an act in furtherance of base motive of lust under cover of legal doctrine? Sometimes, as Bumble said, “the law is an ass.”
Disgusting situation. I wonder if the prosecutor took into account that the victim did not follow Harper into the house when he went to retrieve the gun? How can there be a fear of the victim when he did not follow him into the house? Sad case and horrible and unnecessary law.
The self defense justification already has a provision for an altercation that takes place in your home or work, but it still requires that use of force must be proportional and reasonable. The use of force in this situation can be considered neither proportional or reasonable.
Here we go again … Too many laws made by man to destroying man ! Eye for an eye …..
As private rights continue to erode, although admittedly with a couple of favorable decisions in the past couple of years, the castle doctrine laws actually reinforce the idea of rights.
Instead of reverting to common law concepts that will ultimately rely upon interpretation of what is often messy facts, the rule is simple, stay out of another person’s house.
“Forget it Jake…it’s Chinatown.”
wow was it just to expensive to get a divorce ??? shame on her… yep the movie will be out soon…….. just saying and they live happy ever after….
Gary,
Under common law that predated the Castle Doctrine, the standard was use of reasonable force to defend self, family and property; a sliding scale dependent upon situation. Requiring the home owner to exercise good judgement in applying appropriately reasonable force to the problem, it needed no refinement into the shooting gallery without culpability that is the modern Castle Doctrine.
The hole is created by the Castle Doctrine which was unnecessary to start with.
It is always a tragedy like this that also causes a knee jerk response back too far in the opposite direction.
I have a strong philosophical bias to believe that a man’s home IS his castle.
The solution to this problem, and the result that happened in this case, is not to throw out the idea of the castle doctrine, but to refine it so it makes practical and fair notice sense.
Did the gun owner make a reasonable effort to inform and direct the person to get out of his home? Or is it considered a booby-trap that once you are on someone’s property they simply have the right to kill you?
Does the law require fair notice to the invading person to cease and desist first?
I can’t believe that an unarmed man, faced with an armed one, and being told to remove himself from the premises, will not do so.
The hole is in the law as written, not with the castle doctrine as a principle.
Some calls have been close….. But this one….. Come on…..it’s like expecting the cubs to win the world series….. What that five score and four years ago….. When baseball was in its infancy…..the cubs…. Now known as chubbys won back to back titles……
Yippe ki-yay! It’s a western and we’re all in the movie!
Brian is probably right on. However, if you have this law in your state then dont go into some guy’s garage to confront him. And if it is a condominium property then dont intrude into the common grounds. As a matter of broad sense, dont intrude. Use the internet to confront. Bark without getting bitten.
From the content of the article it was difficult to ascertain who was porkin who.
made for TV movie. Wife sets up husband to be killed by wifes lover. Wife inherits husband’s estate and insurance policy and wife and lover live “happily” ever after.
Wife: I have been fornicating with Joe.
Husband: I am going to confront Joe.
Wife: yes, please do.
Wife thinking to herself: yeah baby, we have a castle doctrine in this state.
Husband: Joe, you a$$hole.
Joe with gun: blam, blam.
Wife: Joe, oh my god you killed him, that is just great, er no ah terrible.
its still a work in progress.
Evidently insanity is difficult to outlaw.
Especially by societies that are increasingly insane.
“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.”
Yep. That’s what happens when you build laws around emotion and irrationality instead of reason. The traditional common law protections that existed before the expansive Castle Doctrine nonsense were (and are where still applied) reasonable, just and adequate.