Castle Doctrine Under Scrutiny After Shooting

By Beacon Staff

On Sept. 22, a 24-year-old Kalispell man shot and killed a 40-year-old man. Two weeks later, Flathead County Attorney Ed Corrigan announced that he would not bring charges against the shooter, who has claimed self-defense.

Since then, the state’s self-defense law, which underwent significant changes during the 2009 Legislature, has come under scrutiny in the Flathead community. Some, including the victim’s family, disagree with the county attorney’s decision, while others defend the basics of a law they say protects Montanans from the presumption of guilt before innocence.

Brice Harper shot and killed Dan Frendenberg as he stood in Harper’s garage on Sept. 22. The two men had a history of confrontation over Fredenberg’s wife, who would later allegedly tell investigators she and Harper “pretty much had an affair” during the strained marriage. She has since filed an order of protection against Harper.

According to a report from the county attorney’s office, Harper shot Fredenberg three times after showing Fredenberg the gun and telling him to stop approaching. Police initially took Harper in for questioning, but let him go.

When contacted last week, Harper’s attorney, Quentin M. Rhoades, did not provide comment.

On Oct. 9, Corrigan released a statement outlining why he would not press homicide charges against Harper, centering on Montana’s self-defense law, commonly called the castle doctrine.

In 2009, the state Legislature changed the state’s self-defense law, allowing a person to use deadly force against an unlawful or uninvited intruder if he or she reasonably believed the intruder might assault him or her.

That person is no longer expected to retreat from the intruder, and if the person claims self-defense under the new law, the burden is now on the prosecution to prove beyond a reasonable doubt that the person’s actions against the intruder were not justified.

Under this law, Corrigan said he did not believe he had the evidence to prove Harper’s actions were not justified, and would not press charges – especially homicide charges – if he did not believe he could secure a conviction in court.

Fredenberg’s family is calling for the matter to be placed in front of a jury. Ron Fredenberg, Dan’s father, was a member of the Kalispell Police Department for 23 years, and said he knows there are different ways to interpret Montana law.

“That’s all I’ve asked on this case, is to let the jury decide how the Legislature intended the law,” Ron Fredenberg said.

He believes the castle doctrine is a bad law in its current form.

“The way it’s written, it allows murder,” he said. “All you have to do is have somebody come into your house that you don’t like, claim you’re afraid of them and shoot them. In this county, the county attorney won’t prosecute.”

For his part, Corrigan said he is aware of the Fredenberg family’s hope for a trial, but said he would not prosecute under the current law. The Montana County Attorneys’ Association lobbied against the 2009 changes to law, Corrigan noted.

Leo Gallagher, president of the MCAA and the Lewis and Clark County attorney, said the law, which went through the Legislature as House Bill 228, was a “solution that had no problem.”

Law enforcement was doing a good job at investigating facts in death cases, Gallagher said, and prosecutors did not needlessly file charges before the new law came into effect.

Shifting the burden of proof to the prosecution was “troublesome,” Gallagher said, but he said attorneys are getting used to it and he doesn’t know of any plans to tweak the law in the upcoming legislative session.

Gary Marbut, president of the Montana Shooting Sports Association, helped author the 2009 law changes, and believes the law is working the way it is supposed to. The issue is not about the castle doctrine because Montana has allowed self-defense in an occupied structure for a long time, he said, but rather about the presumption of innocence.

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.

That was an unfair process, Marbut said, and could cost people thousands of dollars to defend themselves in court when they hadn’t done anything illegal.

“One of the things we wanted to accomplish with the change in presumption was to avoid some of these unnecessary prosecution,” Marbut said.

Other states have statutes mandating that a person has to flee or call the police if they believe they are going to be assaulted, Marbut said, and though that was not the case in Montana, he didn’t want it to happen in the future.

“We didn’t want to drift into that,” Marbut said. “You don’t have to run away or call 911 and hope somebody answers the call before you defend yourself.”

But it isn’t over for Ron Fredenberg; he said his family might pursue civil action in this case.

“I’m not done with pursuing different things. Mr. Corrigan’s opinion isn’t what my opinion is. I think that jurors might have a different interpretation of the law than him,” Ron Fredenberg said. “Because of that, I can’t just let it lay. My son deserves justice and he’s not getting it the way things are.”

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