And now we're hearing from Montana's county attorneys, sheriffs and police chiefs, all of whom oppose the 2009 law that expanded the "castle doctrine" to give homeowners more leeway to kill potential intruders. The law is "a solution that had no problem," the president of the Montana County Attorneys' Association said. And earlier this month, the prosecutor for the town of Kalispell cited the newly strengthened castle doctrine in refusing to indict Brice Harper, a man who shot and killed Dan Fredenberg, the husband of the woman Harper was having an affair with. Harper didn't kill Fredenberg at the end of a violent encounter. He killed an unarmed Fredenberg when he walked into Harper's garage.
The idea that Harper won't be charged is crazy making because he had a clear, safe choice that didn't involve shooting. According to the letter Flathead County attorney Ed Corrigan wrote explaining his decision not to prosecute, Fredenberg suspected that his wife, Heather Fredenberg, was having an affair with Harper. On the day of the shooting, she went to Harper's house with her 18-month-old twins to help him get ready to move out. Her husband called to ask if she was with Harper, and she didn't answer. Then she and Harper went for a drive -- she wanted to get his opinion about a noise her car was making -- and she saw her husband following behind. Harper got out of the car at his house. Heather Fredenberg told him to go inside and not to answer if her husband came to find him. Instead, Harper went inside, got his pistol from his bedroom, and stood at the door from his laundry room to his garage while Fredenberg approached. Harper told the police, "I told him I had a gun, but he just kept coming at me." He also claims Fredenberg was "charging at him, like he was on a mission." When Fredenberg was a few feet away, Harper shot him three times.
Harper told the police he feared for his life at that point. Maybe so. But it's hard to see how he could have reasonably had such a fear when he saw Fredenberg walking up the driveway and had the option of going inside and closing the door. Montana's law, however, gives people in this situation more leeway for a confrontation -- this really is about standing your ground, for good reason or for bad. You can use force if you think it's necessary to prevent someone from unlawfully entering a house. You can use force "likely to cause death or serious bodily harm" if you think that's necessary to keep yourself from being assaulted. You don't have to fear that you may be killed or seriously injured. You have no duty to retreat or call the police. And if you have evidence that your use of force was justified, it's the state's burden to prove beyond a reasonable doubt that it wasn't.
Call me a wimp who's afraid of guns, but I cannot for the life of me understand why you'd want to move from permitting self-defense to encouraging someone to go inside to get a weapon and then lie in wait on someone else approaching their house. I can see why Harper thought Fredenberg would beat him up. I can't see why he put himself in the position of either getting beaten up or gunning him down. Nor is it hard to find other examples in which "stand your ground" or expanded castle doctrine laws let shooters off the hook when their refusal to walk away is integral to the confrontation.
The response to a New York Times story about Fredenberg's death and Corrigan's decision not to prosecute includes the claim, from Jacob Sullum of Reason, that Harper's decision to shoot would have been justified "even without the changes that the state legislature made to Montana's self-defense law in 2009." Corrigan said the key for him was that the law used to give people the right to shoot to kill intruders only if they entered in a "violent, riotous or tumultuous manner," but the new version of the law deleted the "violent, riotous or tumultuous" part. Sullum argues that Fredenberg was being violent or riotous or tumultuous. I don't see it -- belligerent, maybe, but not actually violent.
And in any case, it seems to me that the larger problem with these Go-Ahead-and-Shoot laws is the insidious way in which they encourage rather than deter violence. The National Rifle Association, the lobbying force behind the laws, which have passed in more than 20 states, exploits the understandable fear people have of being attacked at home to the point of countenancing killings that are barely provoked at all. The law has always provided for a right of self-defense. As Turley explains, the new breed of castle doctrine is "based on an urban legend that people are routinely prosecuted for defending their homes from intruders." It's one thing to fend off someone who is trying to kill you. It's another thing entirely to set up the legal framework so that if you say you felt in any way threatened, prosecutors have to prove beyond a reasonable doubt that you were wrong.
At least Fredenberg's death has persuaded the local newspaper to call for rethinking Montana's castle law. Now let's see if the legislature is brave enough for a confrontation worth having -- with the NRA.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids.
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