Criminal Justice

The Fine Line Between Belligerence and Tumultuousness in the Shooting of Dan Fredenberg


Last week I questioned the suggestion that a specific 2009 change to Montana's self-defense law explains Flathead County Attorney Ed Corrigan's decision not to prosecute Brice Harper for killing Dan Fredenberg last month during a confrontation over Harper's affair with Fredenberg's wife. The law used to say that deadly force may be used to prevent an assault by a home intruder only when he enters "in violent, riotous, or tumultuous manner." Although The New York Times cited the elimination of that language as a reason for Corrigan's decision, I said, the details of Harper's encounter with Fredenberg suggest that the latter's behavior was "violent, riotous, or tumultuous": According to Harper and Fredenberg's wife, Fredenberg angrily charged into Harper's garage, cursing at him, and continued to advance even after Harper brandished the gun and warned him away. Salon's Emily Bazelon says Fredenberg was "belligerent, maybe, but not actually violent." Well, Corrigan concluded that Harper reasonably believed Fredenberg was about to become "actually violent," and his manner can fairly be described as "tumultuous," i.e., "noisy and disorderly" as well as "violently agitated."

According to Bazelon, "Corrigan said the key for him was that the law used to give people the right to shoot to kill intruders only if they entered in a 'violent, riotous, or tumultuous manner,' but the new version of the law deleted the 'violent, riotous, or tumultuous' part." Corrigan did not say that in the New York Times story or in his four-page letter explaining why he did not pursue charges against Harper. He did say this to the Times:

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.

But that was true before the 2009 revisions to Montana's law, when deadly force against a home intruder was considered justified if a resident reasonably believed it was necessary "to prevent an assault" or "the commission of a forcible felony" (provided the intruder entered in "violent, riotous, or tumultuous manner"). In other words, you did not have to claim that you feared for your life (although Harper did claim that).

The legislature in 2009 also added language explicitly saying that a homeowner in this situation has no duty to retreat, and Bazelon emphasizes that Harper could have run into his house, locked the doors, and called the police rather than choosing to confront Fredenberg in the garage. But if that provision merely codified what was already the rule in Montana (as the Flathead Beacon reports, citing the president of the Montana Shooting Sports Association), it does not seem crucial in this case either. As I said, another 2009 amendment, requiring the state to prove beyond a reasonable doubt that a defendant's use of force was not justified (once he has provided evidence suggesting it was), seems like it would be a more significant factor for a prosecutor weighing charges against Harper.

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  1. All the law does is shift the burden of proof to the prosecution, which is as it should be.

    Going bankrupt to prove one’s innocence, in a self-defense case, is a gross miscarriage of justice.

    The guy chased someone around town, then into his garage, and kept coming when told to stop by his intended victim, holding a gun. The attacker is now dead; the homeowner in his own garage is alive. That SHOULD be the end of the story.

    1. But…but…Gun VIOLENZ!

  2. Bazleon emphasizes that Harper could have run into his house, locked the doors, and called the police rather than choosing to confront Fredenberg in the garage

    But does he explain why this is supposedly the superior option?

    1. But does he explain why this is supposedly the superior option?

      Because only trained government agents should be allowed to have guns! Duh!

      Everyone else has a moral duty to cower in the corner and beg for mercy while the police get around to responding to the call!

      Didn’t you know that it is better to die with a phone in your hand than to live with a gun in your hand?

      Guns are bad!

  3. FWIW, Reason contributor, Richard Epstein has taken Fredenberg’s side in this case. He says that Harper’s response was disproportionate. A tsunami of commenter criticism ensued.

    1. Who gives a shit if it’s disproportionate?

      When someone follows you around town and follows you into your home, threatening you and refusing to leave even when confronted with a firearm, it’s NOT A FUCKING SPORTING EVENT.

      “Unnecessary roughness” is football, not self-defense.

      1. It’s too bad that someone is dead now, but that was the result of his own choices, actions and threats. He is culpable.

      2. I agree. And while IANAL, I’m not sure that this is actually part of American jurisprudence. I thought that was the English standard.

        When I lived in England, I was informed that, “if someone attacks you with a jelly donut, you have the right to defend yourself with a jelly donut.” I don’t recall if I asked at the time, but the obvious question is, “what if you don’t have a jelly donut?” More seriously, change “jelly donut” to knife, assume that would-be victim defends himself with a gun. I guess that’s “disproportionate,” but I have trouble caring for precisely the reason you identify.

        1. It’s an unreasonable standard also because one’s assailant could be twice one’s size, well-trained in martial arts, or simply a more experienced fighter.

          I wouldn’t be real good with a knife, myself. My attacker might be.

      3. Yes to BarryD

    2. Disproportionate is how you stop the encounter. You don’t win by being proportionate.

      1. Right. The point of self-defense is that the victim has the right to stop the attack by whatever means he/she can, not to turn the attack into a test of strength. IT’S NOT A SPORT.

        1. It’s pretty disproportionate already with some abusive guy in your house that you didn’t even let in. Why does the attacker get to set the terms of the attack?

  4. The man who was dead, according to his estranged wife (who had shacked up with the other guy in response), abused her. Therefore, one must assume that Emily Bazelon is part of some insidious War on Women that wants to see women physically abused.

  5. If Fluffy were here he could spin a whole lot of “facts” pulled out of his ass to make the case that Harper murdered Fredenburg. Just like he did with Trayvon/Zimmerman.

    1. Yeah, Fluffy didn’t cover himself in glory over that whole episode.

  6. I don’t know about the rest of the country, but I don’t believe he would have been charged anywhere in Indiana. We are not Great Britain yet, thank goodness.

    1. I think NJ may have tried to charge him. While NJ has a fairly decent castle doctrine, they try to apply a “to the keep” attitude where you should retreat within your own home. While the law technically states you don’t have the duty to retreat within your own home, it is qualified with a duty that you ask them to disarm/retreat/stop and attempt to avoid the situation if at all possible safely. The way around those duties is if their presence is “sudden and forceful” – which this may even qualify for in NJ, which has some of the strictest gun/defense laws in the country. That is why I am glad to be in NC.

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