"I'm not scared. I have a gun."

Brice Harper fatally shot the unarmed husband of the woman he was seeing. Montana law made sure he was never charged.

| January 31, 2013

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State Rep. Krayton Kerns introduced the revision of Montana's Castle Doctrine law to the 2009 state legislature. The old law said that individuals could utilize deadly force only if someone entered their house in a "violent, riotous, or tumultuous manner." The 2009 bill struck that language and gave individuals license to use lethal force if they "reasonably believe" they are about to be assaulted. The law also shifted the burden of proof to the prosecution. Kerns feels the law resolves inadequacies in law enforcement's ability to respond to threats. "You're always at the mercy of law enforcement," he says. "The duty to retreat and dial 911 is your only recourse. And there may be times, maybe a lot of times, maybe most times, where that's not enough. I think it's essential to a free society."

Since 2009, Montana has seen several cases bring the issue of self defense into play, the outcomes exposing a legal margin fettered with uncertainty. On July 7, 2009, outside Roundup, Bobby Cooksey shot and killed his neighbor, Tracy Lee Beardslee, with a high-powered rifle from his yard. The men had previously disputed over property lines and land use. Beardslee was trimming grass when Cooksey shot him. Cooksey was charged with deliberate homicide. During the trial, Cooksey testified that Beardslee had threatened to kill him. "I had to protect my wife and myself," he said. A psychologist who had evaluated Cooksey diagnosed him with an anxiety disorder. The psychologist testified, "I think [Cooksey] saw a big angry man who threatened his life."

Before sentencing Cooksey to 50 years in prison, Musselshell County District Judge Randal Spaulding told Cooksey, who was 68 at the time, that when he took Beardslee's life, "you effectively took your own."

Less than a year later, 50 miles down Highway 87, another claim of self-defense produced a very different result. On Aug. 10, 2010, at a Billings Walmart, store employees Craig Schmidt and Danny Lira got into an altercation over an extended break Lira took while working at the loading dock. Reports of the incident say that Schmidt bumped into Lira's shoulder, which Lira took as an invitation to fight. Lira, who was 5'10" and 260 pounds, punched and shoved Schmidt, who was 6'2" and 141 pounds. Schmidt took out his concealed .25-caliber pistol and shot Lira in the forehead.

According to Montana law, Yellowstone County Attorney Dennis Paxinos needed to determine whether Schmidt believed his life was threatened before charging or not charging him. In his decision, Paxinos wrote, "This case is difficult because of the obvious disparity of force between punches and a firearm. But, after careful consideration of the facts, we conclude Mr. Schmidt's use of force was justified under Montana law."



"I was crazy that night"

Ed Corrigan's Oct. 9 press release offers scant glimpses into a police investigation that has been otherwise sealed from public view. Through the lens of Corrigan's decision, Harper's side of the story comes into peripheral focus. Harper, who declined to comment for this story, told police that he knew Dan "wanted to kick his ass (sic)." Corrigan also quotes Harper as saying that Dan "was charging at him (sic), like he was on a mission," and that he "was scared for his (sic) life."

Dan Fredenberg and Brice Harper argued at Fatt Boys Bar and Grille a month before Harper shot Fredenberg. Heather says she heard Brice say, “I’ll blow your fucking head off.” - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Dan Fredenberg and Brice Harper argued at Fatt Boys Bar and Grille a month before Harper shot Fredenberg. Heather says she heard Brice say, “I’ll blow your fucking head off.”

In a summation of the evidence, Corrigan wrote:

"Given the relationship between Heather and Brice which was known to Dan, the prior confrontation at Fatt Boys, 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."

The Fredenberg family disagrees with Corrigan's decision. They feel the investigation lacked depth and transparency, and that the police treated the case as a forgone conclusion. Ron Fredenberg, Dan's father, believes charging Harper with homicide was never an option for Corrigan. He says the night Dan died, Chief of Police Roger Nasset and Sgt. Allen Bardwell, the latter a former colleague of Fredenberg, came to his house to tell him Dan had been shot to death. Fredenberg asked where the shooter was. They told him Harper was at the police station. Fredenberg asked what he would be charged with. Bardwell said he didn't know if charges would be brought. Fredenberg says Bardwell recommended a civil suit for wrongful death. Fredenberg believes the investigation was "over before it began." Roger Nasset does not recall the specifics of this conversation.

Though the entire investigation has been sealed, documents obtained by the Independent offer a partial picture of the information Corrigan used to make his decision.

At 9:45 p.m. on Sept. 22, an hour after the shooting, Kalispell Police Officer Doug Overman interviewed Heather. In a summary of the interview, which Corrigan appears to quote from in his press release, Overman outlines a conversation in which Heather says that Harper was a "very responsible person," and that she saw her husband get shot from the driver's seat of her car. Overman also writes, "Heather was extremely distraught and at times had difficulty talking to me." At one point in the interview Overman writes that, "Heather has many utterances ... of various ability to understand." The summary makes no mention of Harper threatening Dan at Fatt Boys or saying the night of Dan's death, "I'm not scared. I have a gun."

Heather claims that she was never read her Miranda rights. She says she was not contacted by the police again, but felt desperate to tell her story. "I was crazy that night," she says about the night of her interview. Four days later, Sept. 26, Heather handed in a written witness statement to the Kalispell police. She outlined what she considered warning signs that predicted the shooting, the most startling of which having to do with what was said that August night at Fatt Boys.

Heather isn't the only one confused by the investigation. The night of the shooting, Laura Bachman asked a police officer if he wanted her statement since she and Monica Shultz were the first responders. The officer handed her a piece of paper and a pen, but disappeared before she could return it. She says she left messages with the detectives assigned to the case. Three days later a detective responded and invited her to the station. "[The detective] just asked me what I saw..." she says, "and he didn't record it or write anything down." When she heard that Harper wouldn't be charged, her reaction was singular: "I was shocked."

Comments (8)

Showing 1-8 of 8

You all are entitled to your opinions. Are you all without sin, that you feel you can cast that first stone. Did you all live behind those closed doors of Heather and Dan to cast such judgement? Have you all never been in your 20's before and never made bad choices that affected others around you? Didn't think so....it could have easily happened to anyone of us!! There is few that it does happen to, but when it does happen to those few, you grow up fast, you are remorseful, you do blame yourself and know you have to live with this everyday for the rest of your life. But does anyone ever realize that all played a part in such a tragic situation? Everyone makes decisions everyday, whether right or wrong. You all get just the basic outlines of the intimate details...don't judge until you have walked in their shoes!!

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Posted by mlk2010 on 09/14/2014 at 9:37 AM

Very sad to see how people read/listen to what the media has misconstrewed and believe it, you all have no clue...

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Posted by Ski-Chic on 03/13/2013 at 11:30 AM

Oh yeah, Brice Harper your also the reason this child will never know the love of a father. You absolutely have no morals and if you could of just kept your pants up and not around your knees this would have never happened. You and people like you are the stain on society.

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Posted by Shadow on 02/07/2013 at 12:07 PM

How utterly tragic this total lack of any moral fortitude or fiber has ended up with the death of her husband and the father of her child.
I can hear the question now. Mommy how did daddy die? Well little fatherless child I was a POS wife and I was seeing and dating the man that shot your father to death. He died on a cold garage floor with no loved ones around and it’s my fault because I could not accept responsibility and I was seeking the attention of another man.
You see child I have no moral fiber and I am the cause of his death. It is my fault that you will never know him or feel the love of your father.
After my lover killed him I had to say this about your father because I needed more attention and needed to cover myself from my wrong doing. Here is what I said about your dead father. He would ... strangle me, choke me. He'd tackle me or bite me or slap me across the face," she remembers. "But he was also a very gentle person, you know? He hated confrontation." I know it makes no since but mommy needed the attention.
Wonder if that will be the answer the child gets? I ask that because it’s the truth.

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Posted by Shadow on 02/07/2013 at 12:00 PM

Undoubtedly, this is a tragic story and a situation that should have never happened. I hope that the Fredenburg's can find peace. That said, if any wrongful death suit is filed, it should land square on the shoulders of the common denominator of the situation: Heather. I can only hope that someday, she will reach a level of maturity that will allow her to realize the err of her ways and the responsibility she ultimately holds in the fact that her children's father is no longer with us. Any criminal case against Harper is not going to change the fact that she spun this web and played with the minds of two men for her own selfish attention seeking gratification. Perhaps instead of outlawing guns, we should legislate for better moral background checks of baristas.

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Posted by Crowbar on 02/03/2013 at 3:37 PM
Posted by Kristin Hargrove on 02/03/2013 at 3:17 PM

Local comments suggested that Fredenburg was drunk that night. If that was true, and he was drunk enough not to follow a command to stop, it seems the first shot might have been self defense. It seems that was the fatal shot. The others I would question.
I hope this woman has the sense to stop having children. She's not mature enough to handle her own life.

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Posted by Thinker on 01/31/2013 at 9:14 AM

Moral of the story: Messing with a bad woman can get a man killed.

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Posted by Scott Wilson on 01/31/2013 at 8:04 AM
Showing 1-8 of 8

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