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. How will I protect my daughter, they worry. Pour boiling oil down his mouth. A couple did, with the help of their son.
    —————————————————-
    Is that called mercy. This is America. One of my sisters told me somebody has to fall on their sword. I said, get out you sword. I didn’t do anything wrong and I didn’t say anything wrong. I’m not going to fall on my sword. I have four sisters and no brothers. I won’t fall on my sword.

  2. Actually all know that what they get is only a short term loan. Even the ME immigrants, they are the only ones who are shook up about this knowledge.

    How will I protect my daughter, they worry. Pour boiling oil down his mouth. A couple did, with the help of their son.

  3. Were we talking on the other thread about property rights?

    The only men in Sweden who think they own women are bikers, immigrant haters, and some ME immigrants. All others say, “entertain her while you can!” (A tad exaggerated! ie the latter
    invitation.

  4. 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.”
    ————————————————————————————
    Too bad, so sad. I do believe it would have turned out differently.

    I know somebody named Harper who’s an International Specialist Agent. Oh wait, he wasn’t a Special Agent, he was just a regular Agent.They sent him to Appeals. Guess what, you’re not that special.

    Now, Mr. Harper, How do you like in Appeals?

  5. This woman is trouble…. and has gotten her husband killed because she wants to play games with two men… wow I am sure he has known that she was messing around on him for some time…. he should have just left her and took the kids with him….. Shame on her….. and wonder how those children will grow up… why get involved with the man that your wife is screwing ??? wow just leave her… yep he would still be a live… might even see the boyfriend and her together down the road… movie…

    divorce …… and take the kids with ya…. he would still be here… just saying

    seen a lot of woman play games with men… who can I make more jealousy… who wants me more… or who loves me more… please… domestic violence….. sad thing…

  6. Mespo,

    You must be careful about which moat we’re talking about…. More seems to be better applied…..

  7. From the NY times link in at the end of the article.

    On Sept. 22, Mr. Harper called Ms. Fredenberg and asked a favor: He was moving out of town the next day, and could she come over and help him clean the house? She took her 18-month-old twin boys and spent the afternoon at his home, a five-minute drive from hers. She swapped tense text messages with Mr. Fredenberg and talked on the phone around 8:30 p.m. He asked whether she was with Mr. Harper. She said she did not answer. He cursed and hung up..

    WOW !! Who could imagine something confrontational might develop.

    Fredenberg told his father, the night before he was going to leave his wife.
    He should have done it immediately, he’d be alive today.

    The other two parties are hopeless dumb**sses.

  8. Can someone explain to me what the purpose of “castle doctrine” laws are. Doesn’t the self defense justification provide that you do not have to retreat at your home or place of work? What do the “castle doctrine” laws add to that law, other that removing the reasonable and proportional requirements of a self defense claim?

  9. One thing that can be said, regardless of whether the Castle Doctrine is applicable or not, things are usually far better by not taking extreme measures. The least amount of force that can accomplish the goal is always best. Depending on the situation, I would either have called the police or escorted him off the property. Most likely, I would have most likely done the former. The reason: I don’t want to have to deal with any potential fallout as a result because it is a headache, risky, and what about the other person as well?

    Personally, I don’t see why in this case the shooter did not just go inside and lock the door. What’s the worst that could have happened in the garage, the husband vandalized the property? Then he could be arrested for burglary and malicious mischief. (the shooter could have satisfaction in this) Or he could have broken down the door and well the law is a little more clear here.

    There was no real need to shoot this man from what I read here. Just because you “can” do something does not mean you “must” do something.

  10. OS:

    “Mespo, maybe justice will be done when the grieving widow shoots Harper under the castle doctrine. After all, she is now living “in fear of him.”

    *************************

    Sounds like a Lifetime movie to me.

  11. BettyKath,

    Good thinking.

    Amd if I went into the huuse to get my gun in self-defense, then I am certain that I would have locked the door behind me upon entering—just so as to avoid being jumped on from hiding on return to guard against forced entry.

    He did not, showing in my mind, intent to return with a view to using the weapon no matter what circustance he encountered. The husband was an idiot to hang around.

    Just take the trash out to the garbage pail and ditch her. I think it was more than her motor that needed “listening” to by the lover.

  12. It was the DA who decided not to prosecute, seemingly just on the word of Harper.

    The two (three?) car garage is attached to the house. The article indicates that Harper shot from the door to the house proper. If Harper had just locked the door to the house, there most likely would not have been a death.

  13. “Harper, a former barista that married Fredenberg …”

    “Shortly before the shooting, Ms. Harper …”

    After struggling to comprehend this complex narrative, I concluded that ‘Harper’ in the first instance should be replaced by ‘Stephanie’, and in the second by ‘Fredenberg’.

    Thank you for the blog post on this important topic.

  14. How did Harper “a former barsiata” get pregnant, and why did he marry Mr. Fredenberg? Was Mr Fredenberg already married to his young wife when Harper married him?

  15. I say shame on her…. she is the fault of all of this….lets see how much shit I can cause between the two men…. lets antagonize both men and make them jealousy of each other and let them fight it out… well murder now… wow this woman needs some help…. and she has two children… how will she raise them??? just saying

  16. Mespo, maybe justice will be done when the grieving widow shoots Harper under the castle doctrine. After all, she is now living “in fear of him.”

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