Shooter in Subdivision Killing Won’t Be Prosecuted

By Beacon Staff

There will be no charges brought against the man who shot and killed a 40-year-old Kalispell man on Sept. 22 due to the 2009 self-defense law commonly called the “castle doctrine.”

According to Flathead County Attorney Ed Corrigan, the man responsible for shooting Daniel Fredenberg won’t be prosecuted for deliberate homicide or mitigated deliberate homicide because there is not enough evidence to prove that he did not act out of reasonable fear of a threat in his own house.

In an interview last week, Corrigan said this is the first time he’s dealt with the castle doctrine, a controversial law – House Bill 228 – passed during the 2009 Legislature that drastically revised self-defense laws in Montana.

Before 2009, a person could use deadly force in self-defense if they reasonably believed they were facing the threat of deadly force. The previous law also expected a person to avoid confrontation by calling the police or retreating from a fight, Corrigan said.

The new law, however, inserted a “stand your ground” concept, which means a person does not have to retreat from a threat. And the castle doctrine allows a person to use deadly force in the face of any type of threat.

“If you’re in your home, under current law, and you think reasonably that you’re about to be assaulted, you can kill them even though you aren’t facing deadly force,” Corrigan said.

Another major change included in the 2009 self-defense law was putting the burden of proof on the state, meaning that if someone raises self-defense under the castle doctrine, prosecutors have to prove their fears of assault were not justified.

“Not only do we have to refute his claim, we have to do it beyond reasonable doubt,” Corrigan said.

And in Fredenberg’s case, Corrigan said there is not enough evidence to prove the shooter did not have cause to feel threatened. The shooting took place inside the shooter’s house, Corrigan said, and Fredenberg allegedly wouldn’t stop advancing on the other man.

Corrigan acknowledged that his decision not to bring charges in this case has been controversial in the community; he has received messages from residents arguing that he should prosecute or at least send the case to trial.

But as the county attorney, Corrigan said he can’t legally or ethically charge somebody with a crime when he doesn’t believe he can successfully prosecute them under law.

“As the prosecutor I’m elected to follow the law,” Corrigan said.

According to a statement from the county attorney’s office, the Sept. 22 shooting took place at the shooter’s home on Empire Loop. Fredenberg was shot three times in the garage after confronting the other man about his relationship with Fredenberg’s wife.

The two men had fought during a previous incident in August at a local bar, and it was necessary for bouncers to break them up, the statement said.

Investigators say Fredenberg was standing and facing the other man when he was shot, and the shooter told police once they arrived: “I told him I had a gun, but he just kept coming at me.”

The county attorney’s report also states that Fredenberg’s wife told officers the same thing. She also told investigators that she and Fredenberg had a “difficult marriage,” in which they were physically and verbally abusive toward one another, according to the report.

Fredenberg’s wife also told officers that he would get very drunk at bars, and three months ago, they got into a fight while he was intoxicated and she told him she was “done” with the relationship.

She then began “hanging out” with the shooter, she told investigators, and they “pretty much had an affair.” She told her husband about the other man before the shooting, investigators reported, and text messages on Fredenberg’s phone showed he believed his wife was having an affair.

The day of the shooting, Fredenberg’s wife was at the other man’s home helping him clean to prepare for his move out of state. Her husband called her to see where she was and was driving around looking for her.

At about 8 p.m., Fredenberg’s wife and the other man got in her car to drive around the block so he could figure out what was wrong with it.

She noticed that Fredenberg was following them, and drove back to the other man’s home and told him to get inside and not answer the door if Fredenberg came to it.

Fredenberg then went to the other man’s garage and his wife heard yelling and cussing, then the gunshots, according to the county attorney’s report.

Fredenberg’s wife told investigators that he could get violent, and she believed that if he had reached the other man, she thought “he would have tried to kill him.”

The other man said Fredenberg’s wife said Fredenberg was driving “crazy” and had probably been drinking – he had a blood-alcohol level of .08 when he died. The other man told investigators that he realized Fredenberg had stopped at his home and thought something was wrong. He retrieved his pistol and looked out into his garage, where Fredenberg approached him.

He said he told Fredenberg that he had a gun and to stop, but Fredenberg kept coming at him. That’s when he said he shot Fredenberg in the abdomen. When Fredenberg kept approaching, he shot him twice more.

The shooter said he was scared of Fredenberg and didn’t know what would happen when he reached him.

“Even though (the shooter) obviously had the opportunity to retreat into his house, close the door, and call the police, he was under no legal obligation to do so,” Corrigan wrote.

“Were we to charge (him) with homicide and proceed to trial, I am convinced the judge and/or jurors would conclude that (he) reasonably believed he was about to be assaulted and that his use of force was therefore justified under Montana law. We lack the evidence necessary to prove otherwise beyond a reasonable doubt,” Corrigan wrote.

A Facebook site has been set up in support of the county attorney’s office filing charges against the shooter, and a petition with a similar goal has been started on the website change.org.

Corrigan said he is aware of these sites and that Fredenberg’s family would like him to prosecute the man, but feels his hands are tied in this case, and if people want the law to change, they have to look to the Legislature. Various law enforcement agencies, including the Montana County Attorneys’ Association, lobbied against passing the 2009 law.

The castle doctrine defense has also been used in a shooting case in Billings and a fatal stabbing case in Ronan.

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