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. @Rob-
    Where you live this may be murder, but in Montana it’s not.
    Those duty to retreat laws get innocents killed in there own homes. A criminal is a criminal, nobody forces them to intrude on someones property and why should a homeowner have to take a risk that the intruder may or may not try to harm or kill them? It is simple, if you don’t want to get shot stay out other peoples homes.

  2. @ john530, where I live you have to retreat to the furthest corner of your house before you can resist. In your car you have to run away before you can resist. If you do resist, and a criminal is killed, you can be sued by his family because you took away his support. Most Castle Doctrine laws are to make sure if the one killed was in a criminal activity,and the police find you are not criminally negligient, you can not be sued in a civil court. This is the main tenant of the laws.
    I support The Castle Doctrine’s 100%,but disagree that this was covered. As far as I am concerned this WAS murder.

  3. What did the husband say to the guy that shot him? Did he threaten the man? was he irate and abusive? Did he attempt to hit the man? Since they had a confrontation before this it is reasonable to assume that the husband was not welcome on the man’s property. Was the affair still going on or was the man simply trying to help the woman find a problem in her car? Did the shooter know that the husband was not armed? There are a lot of questions that are not addressed in the above article. Megan Kelly is supposed to be a lawyer. She should know better than to not address all these questions and more. This story has been poorly researched and presented, and I am surprised at Fox News for not doing a much better job of working up this story. We have all seen in the past where homes were invaded and the home owner shot the intruder in defense of himself and all in his home, and then the homeowner is prosecuted and thrown into prison. That is what the Castle Doctrine is all about, and Megan Kelly knows it. I am disappointed in Megan on this issue. Maybe the shooter was justified and maybe he wasn’t. If the confrontation was about to get violent, the man may well have been justified. The fact is that the woman should have and could have used better judgement than behaving the way she did, That hasn’t been explored either, has it.

  4. The Montana law is good The home owner has the rigth to protect his property. the husband should have back off once he knew he had a gun pointed at him. I carry all the time and yes I would do the same I will not be a victim.

  5. The law is clear. Don’t enter someone’s home/garage uninvited. The shooter is totally justified to use lethal force.
    It turned out that the dead guy was unarmed, but what if he wasn’t? He could have had a gun or knife, or even picked up a shovel or hammer from within the garage. Why should the homeowner have to wait and find out if someone intruding on his property is a armed? By then it may be too late. That is the whole point of the law, and I fully support it.
    He should have just dumped his wife when she told him she was having an affair.

  6. I see nothing wrong with the Montana law. Someone comes on my property uninvited and enter my home garage or otherwise, I consider a threat to my family or myself, and if he does not leave immediately when warned I see no problem in use of deadly force. We sure as heck can not depend on our leagal system to protect us. Victims have no champions.

  7. Well, an idiot goes to the mans house, who’s layin his wife, not rape, peanutbutter legs, meets his maker – duh !
    Why are we even discussin this ?

  8. Thank God for the Castle Law. “Nobody comes into our house and pushes us around”. If they do, they will die.

  9. Mercedes/Megyn, I’m a cop so I have a good perspective on this…..it does not matter if someone knew they were being followed or were involved in an affair. The guy that died was trespassing on the shooter’s property. It does not matter if the garage door was open. The guy that died did not have the right to go to the guy’s house. I’m not saying the affair was right, but husbands do assault/kill guys that are messing with their wives, and this homeowner has the right to defend his property and his life. Its not murder, and its not the death penalty, its a man protecting his property and it wouldn’t have happened if the husband stayed away and chose to confront this situation differently.

  10. OTOTOTOT—sort of

    Grisham, the writer was on the Golbert Report (date?).
    Unknown to me (what isn’t?), he was promoting himself and his new book “Rackets”.
    When asked why he went from lawyering to writing, he replied that he was starving. “Were you a bad lawyer?” asked Colbert. Grisham replied: “Well, I had a lot of guys in jail.

    When asked about the killing of a judge, major theme in the book, he replied “we all have several we would like to kill (among the judges).

    Enjoy if you can find it

    Are Grisham’s books amusing? He was candidly deadpan.

  11. What this and many other stories aren’t reporting is the wife in the Montana case has made statements backing up the shooter’s account of self defense. She can’t back up his defense then play victim. FACT IS: If she would have been at home and not driving around with her lover when her husband found her, the husband wouldn’t have been at the shooter’s house. FACT IS: If she would have been faithful or moved out or divorced from the husband, he would be alive. FACT IS: Being unarmed doesn’t mean you still can’t be a viable threat. People have been beaten to death with a fist, choked, blunt force trauma… Any number of things. The wife even said she thought her husband would have killed the shooter if he would have reached him. These are FACTS. I’m sick of people blaming a law in this case when the wife and her lover are the guilty parties.

    The “Castle Doctrine” law didn’t kill Dan Fredenberg. His wive’s choices and her lovers actions did.

  12. Brice Harper, shooter, stated publicly several times that he had a gun, wasn’t afraid of Dan, and once even said he ‘would blow Dan’s head off’. When he and Heather were going around the block and knew Dan was following them Brice had TIME to decide what he was going to do. In a self defense situation the confrontation happens and you have to decide. Brice was driving around processing what he was going to do. So he DECIDED on murder. He didn’t decide to lock his house and call 911. He didn’t decide to keep driving and call 911. He didn’t decide to drive to the cops and get help. He DECIDED he was going to get out of the car, get a 40 caliber revolver and MURDER Danny. If THAT is self defense, we should all be terrified. https://www.facebook.com/JusticeForDanFredenberg

  13. Most likely no angels in this story. People tend to pair up with those of similar emotional maturity and there’s usually been bickering and provocation on all sides. Still, Fredenberg didn’t deserve to die. His wife may have done her best to stir the pot but she probably wanted a fight, not a killing. The DA probably knew that domestic disputes are messy to prosecute and that the girlfriend might back out depending on her no doubt rocy relationship with Harper.

  14. Bron,
    I would have added daytime series, but presume there are no women at home to watch. And the rich ones who could, are out shopping etc instead of TV-ing.

  15. pete:

    if there are no exclusions for murder if she was stupid enough to tell Harper about her plan [if she had a plan]. Hopefully he only had a small policy or he left it to his mother.

    Maybe I watch too many who dunits but this is definitely a made for TV movie.

  16. Bron

    you forgot
    after husband says “joe you a$$hole”
    then joe says “lemme git mah gun”
    joe with gun, blam blam
    =================================

    now for the real question, does heather still get the life insurance?

  17. Dredd,
    “…peep in the keyhole on your knees.” Ah, know it well.

    Matt,
    It was in Sweden. One father killed his own daughter. She is saint declared with a day to her every year.
    Honor above all is their guideline. Fortunately the grandkids are growing up like Swedish ones. Beautful craatures to see. Equal advantages enables all.

    BK,
    Just as I expected. Feeding two kids and a cheater is no fun at all.

  18. It’s too bad really. Fredenburg was just going to make a gift to Harper of his wife. Harper objected. He didn’t want a cheater except for a little fun. Fredenburg insisted. Harper just had to shut him up.

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