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."