Under fire

Kalispell shooting death puts state law in the crosshairs



Brice Harper stood in the doorway between his laundry room and garage in Kalispell on the evening of Sept. 22 and shot an unarmed Dan Fredenberg three times. The first bullet struck Fredenberg in the stomach. The second two hit him in the left shoulder and grazed his face. Fredenberg died in Harper's garage.

According to a letter written by Flathead County Attorney Ed Corrigan early last month, Harper's actions were justified under Montana law. Fredenberg had entered the garage to confront Harper about his relationship with Fredenberg's wife, Heather. Based on Fredenberg's alleged behavior that evening—Heather told police she believed her husband "would have tried to kill" Harper—Corrigan excused Harper's assumption that Fredenberg intended to assault him. Harper subsequently faces no criminal charges in the wake of the fatal shooting.

Missoula Independent news
  • Photo by Chad Harder
  • State Rep. Jon Sesso, a Democrat from Butte, voted against HB 228 in the 2009 Montana Legislature, but believes recent events make revisiting the state‚Äôs Castle doctrine inevitable.

The Kalispell incident is merely the latest in a series of self-defense cases to be dragged into Montana's debate over the Castle doctrine, a state law allowing homeowners to use lethal force to prevent an attack. Fredenberg's death is sparking renewed skepticism of such laws in the months leading up to the 2013 Montana Legislature. Gary Marbut, president of the Montana Shooting Sports Association and recent candidate for House District 99, says there's a good chance someone will introduce a bill challenging the Castle doctrine.

"The people who will argue that side of the question will drag up issues from Mars if they want to and try to make them applicable to Montana," Marbut says. "That doesn't mean that they will be applicable."

The legislature last dealt with Montana's Castle doctrine in 2009 with the passage of House Bill 228, a provision that strengthened self-defense laws. But there appears to be some confusion over what actually changed with HB 228 and how those changes factor into the Fredenberg shooting. Marbut explains that Montana already had a statute on the books addressing the use of force in defending an occupied structure. But HB 228 shifted the burden of proof in self-defense cases. Now the burden is on county prosecutors to show that individuals like Harper are not justified in their use of lethal force, hence Corrigan's decision not to prosecute Harper for deliberate or mitigated deliberate homicide.

"Our position for a long time has been that people need to be fully empowered to be able to enforce their choice to not be victims," Marbut says. "We've been moving in that direction for 20 years and I don't expect that direction to change. There might be a bill introduced to move the ball in the other direction on the field, but I don't expect the ball's going to move in that direction."

The Castle doctrine has been subject to widespread scrutiny in the wake of the February shooting death of Trayvon Martin in Florida. George Zimmerman shot the unarmed teenager and later claimed self defense under Florida's "Stand Your Ground" law. Fredenberg's death will likely fuel similar opposition, with the Daily Inter Lake in Kalispell already writing an editorial proclaiming the community "has not been well-served by either the law or the legal process in this case."

Former state Rep. Jon Sesso, a Democrat from Butte just elected to state Senate, feels a renewal of the Castle doctrine debate in the legislature is inevitable. Sesso was one of numerous legislators to oppose HB 228 in 2009—a stance shared by law enforcement officials and county prosecutors who felt the original proposal reached too far. Sesso says he felt the existing statute was adequate enough to protect the rights of individuals defending their homes and families. But after HB 228 passed the House with 52 votes, those who'd lobbied hard against it "resigned themselves to the fact that it was going to pass."

"I can't help but think that with that kind of activity going on, that there will be some discussion on the Castle doctrine," Sesso says. "And hopefully the legislative body that arrives in January will be made up of individuals who want to have an earnest debate and discuss this through and make some deliberative changes in the law if necessary."

Such a discussion was largely impossible in the 2011 legislative session, during which Marbut and the MSSA successfully pushed provisions to lessen restrictions on concealed weapons—provisions that were stripped from HB 228 in 2009. Whether the make-up of the legislature in 2013 will foster a more balanced discussion is anyone's guess; former Republican state Sen. Jim Shockley of Victor, a major supporter of the Castle doctrine, says he's confident that there will be "much breast-beating" over Montana's self-defense laws this spring.

"Absolutely, somebody will [challenge] it," Shockley says. "But you don't change the law because, in one particular situation, the outcome was repugnant to a lot of people."

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