Kalispell shooting victim's family shocked by 'castle doctrine'

2012-10-11T06:53:00Z 2012-11-10T23:28:23Z Kalispell shooting victim's family shocked by 'castle doctrine'By TRISTAN SCOTT Missoulian The Billings Gazette
October 11, 2012 6:53 am  • 

KALISPELL — Family members of a Kalispell man who was shot and killed during a confrontation on another man’s property are reacting with shock and anger to news that the shooter is protected under Montana’s “castle doctrine” laws, while prosecutors in the state say they’ve become increasingly hamstrung by a piece of 2009 legislation that makes it more difficult to charge cases in which self-defense issues are raised.

The Sept. 22 shooting death of 40-year-old Dan Fredenberg occurred inside the garage of Brice Harper, who had reportedly drawn Fredenberg’s ire after becoming romantically involved with the man’s wife. On the night of the shooting, Harper, 24, was standing in the threshold to his home when an unarmed Fredenberg entered the garage and advanced toward him, according to the police investigation. Harper fatally shot Fredenberg three times, and told police he feared for his life.

This week, Flathead County Attorney Ed Corrigan announced his decision not to charge Harper with deliberate or mitigated homicide, citing the 2009 changes to Montana’s self-defense statute to support his decision.

“I am acutely aware that the Fredenberg family and others believe this matter should be presented to a jury and strongly disagree with the position I am taking,” Corrigan wrote in a letter to Kalispell Police Chief Roger Nasset and other investigators. “I am, however, ethically precluded from charging an individual with an offense, particularly Deliberate Homicide, when I do not believe the evidence and the law will support a conviction.”

The “castle doctrine” bill, or House Bill 228, was sponsored in 2009 by Republican Rep. Krayton Kerns of Laurel and supported by the National Rifle Association. It sparked debate about self-defense rights before passing the Legislature, and was vigorously opposed by the Montana County Attorneys’ Association and other law enforcement groups in the state.

Those who opposed the “castle doctrine” legislation argued that existing law already protects those acting in self-defense, and that the new code only creates unnecessary burdens for prosecutors and police officers by shifting the onus.

“It does make life more difficult for the prosecutors,” said Leo Gallagher, Lewis and Clark County Attorney and president of the MCAA. “Basically, if self-defense is raised, it shifts the burden to the state to prove beyond a reasonable doubt that the force was not justified.”

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, contains “stand your ground” language that no longer requires a person to retreat from a threat, and allows them to use deadly force in the face of any perceived threat.

Jury instructions now include language explaining that if 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.

“If you find that he/she has offered evidence of justifiable use of force, but that the State has failed to prove beyond a reasonable doubt that the Defendant’s actions were not justified, you must find the Defendant not guilty,” the instructions now read.

“We just had to swallow hard, and there it is,” Gallagher said of the changes to the law.

Michele Keiffer, Fredenberg’s mother-in-law, is incensed by the recent developments in the case, and has started a petition to change the law. She is trying to gather support on a Facebook page called “Justice for Dan Fredenberg,” and has posted the petition on the website www.change.org.

“I will not allow Dan’s death to be in vain,” she said Wednesday. “How many more families will have to go through this with their hands tied?”

During the 2009 Montana Legislature, the MCAA opposed changes to the statute, as did the Montana Association of Chiefs of Police and the Montana Sheriffs’ and Peace Officers’ Association.

But the NRA and the Montana Shooting Sports Association furnished strong support for the bill, and MSSA president Gary Marbut said Wednesday that the changes are in line with the law’s original intent, which dates back to 1947.

“This is what is normal in American jurisprudence. What is abnormal is that if a person claims self-defense that the shoe is on the other foot and they have to prove beyond a reasonable doubt that they were justified,” Marbut said. “It wasn’t some grand departure from the status quo. It was merely harmonizing Montana law with federal law and with the law of other states.”

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.

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.”

Marbut says the previous version of the law required a person to retreat and call on law enforcement for assistance before use of force was considered justified.

“They have no duty to retreat, no duty to flee, and no duty to dial 911 and wait 20 minutes for the cops to arrive before they defend themselves,” Marbut said.

The county attorney’s report also states that Fredenberg’s wife provided a similar narrative of events, and 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. She said that the couple’s fights were often precipitated by Fredenberg’s drinking, and an autopsy revealed that Fredenberg had a blood alcohol level of 0.08 when he died.

The woman was in her car outside Harper’s home at the time of the shooting, and told police that she believed her husband would have tried to kill the other man had he reached him. She also told police that she instructed Harper to go inside his home and not answer the door.

Keiffer said the family will not be satisfied until charges are brought against Harper, and believes that a jury should hear all of the evidence and decide on a verdict.

“They’re not giving us a chance to bring this to trial,” she said. “The law is black and white, and this is a major gray area"

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