Criminal Justice

How Do Changes to Montana's Self-Defense Law Explain the Decision Not to Prosecute Brice Harper?


Critics of "castle doctrine" laws are blaming Montana's for the decision not to prosecute Brice Harper, who shot and killed Dan Fredenberg last month during a confrontation over Harper's affair with Fredenberg's wife. But as with the Trayvon Martin case in Florida, it is not clear why the legal provisions cited by the law's detractors are relevant. According to Harper, an enraged (but unarmed) Fredenburg charged into the garage at Harper's home in Kalispell on the night of September 22 "like he was on a mission." In an October 9 letter explaining why he decided not to prosecute Harper, Flathead County Attorney Ed Corrigan mentions some details that were tellingly omitted from the New York Times account, which presents the case as an illustration of the dangers posed by strong self-defense laws:

While being escorted from the scene of the shooting by [Kalipsell Police Department] Officer Jason Parce, Brice stated: "I told him I had a gun, but he just kept coming at me." Heather [Fredenberg's wife, who witnessed the confrontation] stated to Officer Parce: "Brice shot him…he (Brice) told him he had a gun, but he just kept coming at him." A neighbor also reported to Det. Scott Warnell that she overheard Brice repeatedly state "he was coming at me."…

Heather observed Dan enter the garage and approach Brice as he was standing in the doorway to his residence, "walking up to him fast, cussing at him." Heather could not hear what Dan was specifically saying, but she could hear yelling and knew it was "angry."…

When asked by Det. Zeb Dobis if Dan ever got violent, Heather stated yes. [Corrigan observes that they were "were mutually abusive with each other."] When asked what she thought would have happened had Dan been able to get a hold of Brice, Heather stated she thought "he would have tried to kill him."…

Given the relationship between Heather and Brice which was known to Dan, the prior confrontation at Fatt Boys [a local restaurant], the manner in which Dan entered the garage, Dan's obvious anger, Brice's belief that Dan wanted to "kick his ass," and Dan's refusal to stop when ordered to do so, Brice's belief that Dan intended to assault him was a reasonable one. Heather herself was of the opinion that Dan would have assaulted Brice had he been allowed the opportunity to do so.

It seems to me these details, if accurate, would have made the shooting justified even without the changes that the state legislature made to Montana's self-defense law in 2009. Prior to those amendments, the law said someone confronting an intruder in his home "is justified in the use of force likely to cause death or serious bodily harm only if the entry is made or attempted in violent, riotous, or tumultuous manner" and he "reasonably believes that such force is necessary to prevent an assault" or "the commission of a forcible felony." In 2009 the legislature removed the "violent, riotous, or tumultuous manner" language but otherwise left this provision essentially unchanged. The Times cites that excision as an explanation for Corrigan's decision not to prosecute Harper. But wouldn't Fredenberg's behavior qualify as "violent, riotous, or tumultuous"?

The legislature also added a provision saying that "a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force." But according to a story about the case in the Flathead Beacon, there was no duty to retreat from home intruders in Montana prior to this change, which merely codified what was already the rule for such situations.

Gary Marbut, president of the Montana Shooting Sports Association, says (as paraphrased by the Beacon) "the issue is not about the castle doctrine because Montana has allowed self-defense in an occupied structure for a long time…but rather about the presumption of innocence." The paper continues: "In any other crime, a person would be presumed innocent until proven guilty, Marbut said, but before 2009, anyone claiming self-defense had the burden to prove that innocence instead of the prosecution having to prove guilt." The 2009 legislation says: "In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant's actions were not justified."

Although that provision may very well have influenced Corrigan's decision, this presumption of innocence seems only fair, and it is not unusual. According to Michael J.Z. Mannheimer, a law professor at Northern Kentucky University who discussed the issue in connection with the prosecution of George Zimmerman for killing Trayvon Martin, it is the rule "in virtually every state."

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  1. You know, we haven’t had a good ole, knock down, drag out Zimmerman/Martin squabble in a while.

    Because George Zimmerman is a racist murderer and Trayvon Martin was a murderous thug who deserved to die.

    Is this case even got anything going on now?

    1. Fluffy really went insane over that. Zimmerman had the nerve to ask Martin what he was doing, so that gave Marin, in Fluffy’s view the right to beat Zimmerman within an inch of his life.

      1. Martin DID do that. Why wasn’t Fluffy satisfied?

        1. Because Zimmerman didn’t take the beating laying down.

          1. That’s quite an active fantasy life you have.

            1. That is exactly what fluffy argued. Fluffy argued that Martin had a right to attack Zimerman because Zimerman was the agresser. Why was he the agresser, because he had the nerve to follow him and ask him where he was going.

              Fluffy was nuts on that issue. Totally and completely nuts.

              1. No, the issue that Fluffy, and I and whole lot of others had was that you and the others swallowed Zimmerman’s side of the story without question. If he was a cop standing over the body of a dead, unarmed teenager breaking no laws, Zimmerman would have been keelhauled around here.

                1. My recollection is that there was much discussion over a key issue, in which we had very little information, and what we had was contradictory:

                  Who started the confrontation? Who escalated it?

                  The problem, as I recall, with the new self-defense law is that it could be(?) read to give someone who starts a fight a license to kill if they start losing the fight.

                2. No SF. Fluffy said on any number of occasions that Zimmerman was wrong because he confronted Martin. Don’t you remember his endless examples of some poor child walking home and being followed by a creepy guy?

                  Fluffy didn’t argue that we don’t know. He argued flat out that Zimmerman was the agressor and desreved the beating he was getting.

                  1. I too am uncomfortable with being questioned by random armed men while walking in public. But I’m not going to call just having someone question me an initiation of force.

                    But we only have his word he didn’t attempt to grab Martin or otherwise attempt to detain him. And if Zimmerman brandished his weapon, I’m OK with Martin tackling him. Being a neighborhood watch member doesn’t confer any police powers whatsoever.

                    While I don’t think there’s been enough evidence released to decide what happened, unless they have a lot more than they do, I don’t think Zimmerman should be on trial. But I also don’t think he is some hero for initiating a situation that left a kid dead that no one can prove was doing anything other than walking to his Dad’s house.

          2. I understand that he was taking the beating lying down, thus the shooting.

            1. Exactly.

              He took the beating lying down. That should satisfy the people who think that a young athletic dude has the God-given right to beat the shit out of a volunteer neighborhood watch guy who is trying to protect his neighborhood from crime.

              Then he shot his attacker. That should satisfy the people who think that someone who is about to have his skull cracked on the asphalt by an attacker, has the right to self-defense.

              Why all the acrimony? Shouldn’t everyone be happy with this?

      2. There were a whole lot of assumptions made about things no one could actually know on both sides of that argument.

        Fluffy was definitely one of the worst about jumping to conclusions in that case.

  2. Maybe confronting your wife’s boyfriend in his house is a really bad idea.

      1. Maybe he didn’t understand how that swinger lifestyle is supposed to work?

    1. I’ve never understood why people go after the the love interest in the first place. Shouldn’t the spouse be the focus of their rage?

      1. I’ve never understood why people go after the the love interest in the first place. Shouldn’t the spouse be the focus of their rage?

        Beating the shit out of your wife’s lover might play well in front of a jury. Beating the shit out of your wife, not so much.

        1. It tends to play better if it’s a chance meeting on neutral territory, though. And that tends to matter a lot more if you live through the confrontation.

        2. And the property theory of marriage. ”

          She is mine, how dare you fuck her!?! It has to be your fault, otherwise there might be a problem in my marriage I won’t admit!”

          1. ^^THIS^^ It is actually that rare bird known as real mysognony. I would beat someone up for stealing my car or my dog. But I wouldn’t do such a thing for stealing my wife since my wife, because she has free will, can’t be stolen.

            1. Oh come on. Women react the same way to women who “steal their man”. It’s just easier to lash out at someone you don’t have feelings for, it has nothing to do with misogyny.

              (obviously beating anyone in response to adultery is not legally or morally justifiable)

              1. It’s just easier to lash out at someone you don’t have feelings for, it has nothing to do with misogyny.

                Agreed. And on a related note:

                Hey, smart Tulpa’s back. Where ya been? I think someone stole your handle for a few weeks there.

                1. Probably the wife I stopped beating?

                  1. Probably the wife I stopped beating?

                    Common, you know better than that. If you stop beating her, she’s just gonna go out and find someone who will.

        3. [Corrigan observes that they were “were mutually abusive with each other.”]

          Maybe taking after her had lost its luster.

          Or maybe she gave better than she got.

          Or maybe the two of them got off on that kind of shit. Doesn’t sound like they were breaking into any new ground here (right up until somebody got shot). Some people do roll that way.

      2. I agree. My response to my wife running around would be to kick her out and tell him good luck. I don’t really understand the point of beating him up. She made the same choice he did. It is not like she was a child or something.

        1. You’re gonna get soaked in the divorce if you do that. Abandonment is easy to prove, adultery not so much.

          1. I am a male so I will get fucked anyway. Such is life. You really think judges give a shit if a woman fucks around and causes the divorce?

            1. You really think judges give a shit if a woman fucks around and causes the divorce?

              Judging from the “who files and who benifits the most” stats, I’m gonna say, “statistically, no”. But you might catch a break every once in a while.

            2. You really think judges give a shit if a woman fucks around and causes the divorce?

              Judging from the “who files and who benifits the most” stats, I’m gonna say, “statistically, no”. But you might catch a break every once in a while.

            3. Your mistake was not marring a woman who makes more than you do.

              1. Maybe he likes his women undamaged.

              2. Marring a woman? How appropriate to this discussion.

      3. I’ve often thought the same thing. The other party to the affair made no promises to you and owes you nothing.

        1. Legally or morally?

          I don’t think adultery should be a legal matter at all (along with marriage itself) beyond perhaps breach of contract. But you’ve got to be a creep to knowingly sleep with a married woman.

          1. I’d say it depends on the circumstances. If she were estranged from her husband or had an open marriage, I don’t really see a problem.

            I see your point and agree to a large extent. The lover may be a jerk, but he is not the one who has violated the husband’s trust.

          2. But you’ve got to be a creep to knowingly sleep with a married woman.

            I go back and forth mentally on this point. And it mostly has to do with how recently I’ve been laid. But on the cheating point I never do.

            I think it’s like holding the door for someone old. If you’re wrapped up in your own shit, you might not do it, or even notice it’s being done. But cheating on your significant other is like looking at the old guy and slamming the door in his face. The first is just not nice, the second is actively evil.

          3. Even with business contacts, there is such a thing as “tortious interference with contract.”

  3. Brice Harper? The 19 year old centerfielder for the Washington Nationals? I thought he was a Mormon. Isn’t adultery frowned upon in that religion? That’s a clown question, bro.

    1. That dude is rolling in hot tail, why would he want some married chick with a crazy husband. Oh, wait, the Nationals were actually filming Major League 4 this season, weren’t they?

    2. And Zimmermann? the Nats’ third baseman?

  4. The presumption of innocence applies to the question of whether Brice killed Dan in a premeditated way. Brice isn’t disputing that fact, so the presumption of innocence is irrelevant in this case.

    What is at issue is the affirmative defense of self-defense.

    1. Under the new wording, self defense becomes a declaration of innocence, rather than guilt with extenuating circumstances.

      1. Well in that case, the castle doctrine is a significant change from how this case would have been treated.

  5. 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.

    1. Assuming Brice’s story is true, Dan made the decision to follow them and then attack with intent to murder, too. If that’s the case, sounds like Justice For Dan Fredenberg has already been actualized.

    2. If that is all true, then why the hell did Dan Fredenberg go over to his house unarmed? It is real simple, don’t go onto someone else’ property if you are not wanted.

    3. 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.

      You’re terrified to live in a society where if you follow someone onto their property and aggressively charge them they might get away with killing you?

      Please stay out of my neighborhood; I’m uncomfortable at the prospect of what a dangerously unstable person like yourself might do.

      1. Right back at ya. Seriously. Your ‘crazy’ is showing loud and clear.

        1. Crazy is thinking that someone who follows another person, enters his home and attacks him, is the victim.

        2. Don’t worry sweetie…

          I am a nice person who gets along with my neighbors. There’s 0 chance that one will ever feel in fear for his or her life because I ring their doorbell.

          The fact that you think that makes me crazy…

          Well, all I can do is pity you. Living in a civilized society must be a terrifying hell for you…

        3. Your ‘crazy’ is showing loud and clear.

          Maybe to you. Care to elucidate for the rest of us who aren’t blessed with your stunning insight?

        4. So, Jane, you think you have the right to go on someone else’s property and charge at them in their own house after they have warned you off?

          Or that there is no right of self-defense until someone has actually been struck by at attacker who is in their house and has been warned off?

          1. There’s no right to self-defense until you’re actually dead. Then you have the right to defend yourself, since only then can the attacker’s real intent be known for sure.

    4. If someone follows you, enters your property and attacks you, it’s not murder if you shoot him.

      Murder has a definition, and it sure as shit isn’t that.

  6. Dear Jane Doe-

    Move back to California.


    1. I don’t think she’s from California… her philosophy seems to be one from post-Thatcher England, though – where if a guy restrained a burglar until the police could come pick him up, the guy would get charged with kidnapping…

  7. 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.

    So, it was a TRAP!

  8. Even in Missoula, there is a better than even chance you will end up staring down the barrel of a gun if you go barging into somebody’s house making belligerent threats.

  9. I don’t think she’s from California

    Missoula just has that Californicator stink about it. She could be from Massachusetts, or Illinois, or some other place where they get the flutters at the very notion of armed self-defense (by citizens, anyway). I would not be surprised if the mayor of Missoula is a member of Mayors Against Legal Guns.

  10. Are the “Don’t turn Kalispell into Kalifornia” bumper stickers as present there since my last visit?

  11. People who don’t believe in self-defense don’t fucking care whether Montana’s “castle doctrine” law is relevant to the case or not. They’re just opportunistically seizing on what they see as an opportunity to discredit the right of self-defense.

  12. I recommend reading the blog at the link to the Northern Kentucky University professor talking about FLorida’s SYG law, it is worthwhile:…..d-law.html

  13. Dan Fredenberg did NOT know that Brice Harper had a gun. After going inside the home to retrieve the gun, Brice stood in the open door of his laundry room inside the OPEN garage door and just waited for Dan to walk in. During the investigation it was revealed that Brice told several people that he had a gun, wasn’t afraid of Dan and intended to use it. No one took him seriously. So if someone is mouthing off that they are going to kill someone and they do, in Montana it isn’t premeditated it is ‘self defense’.

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