Gunman won't be charged in fatal shooting

Brice Harper will not be charged with deliberate homicide for the fatal shooting of 40-year-old Dan Fredenberg, Flathead County Attorney Ed Corrigan announced Tuesday.

According to a joint press release issued by Corrigan and the Kalispell Police Department, Harper’s actions were justified under a series of state self-defense laws commonly referred to as “castle doctrine” and “stand your ground” laws in effect across the country.

“Were we to charge Brice with homicide and proceed to trial, I am convinced the judge and/or jurors would conclude that Brice reasonably believed he was about to be assaulted and that his use of force was therefore justified under Montana law,” Corrigan wrote. “We lack the evidence necessary to prove otherwise beyond a reasonable doubt.”

Harper, 24, shot and killed Fredenberg the night of Sept. 22 when Fredenberg confronted Harper about a relationship he had been having with Dan’s wife, Heather Fredenberg.

Corrigan discussed the relationship between Dan and Heather and laid out the events of the night as delineated in the police report as the basis for his decision.

The couple had a “difficult marriage,” Corrigan wrote, stating that they were mutually abusive, both verbally and physically. He said Heather claimed Dan pushed and kicked her a week prior to the shooting. She also complained that Dan “drinks quite a bit” and would go to the bar and “come back drunker than hell.”

According to Corrigan, Dan was legally drunk — with a blood-alcohol level of .08 — when he was killed.

Roughly three months before the shooting, the couple got into a fight when Dan came home drunk. She told him that she was “done with the relationship at that time.” It was shortly after that, she said, that she began “hanging out” with Brice and “pretty much had an affair.”

Heather eventually told Dan about Brice, saying “she was going to look for someone else because she was done with their relationship.”

“It is apparent from text messages recovered from Dan’s phone that their marriage was troubled and that he believed Heather was having, or had, an affair,” Corrigan said. “And while he does not refer to Brice by name, he accused her of continuing to associate with the man with whom she had that affair.”

In an interview with Kalispell police, Harper denied having an affair with Heather, but acknowledged their feelings toward one another. He told police he believed Heather and Dan had been going through a divorce at the time.

An initial confrontation between Harper and Dan occurred at Fatt Boys bar in August, when Dan became upset about the attention Harper was showing to Heather. The pair had to be separated by a bouncer.

DETAILS OF THE fatal encounter between Harper and Dan Fredenberg were revealed Tuesday in a report Corrigan sent to Kalispell Police Chief Roger Nasset and two detectives. 

What follows is the summary of Corrigan’s narrative:

On the day of the shooting, Heather was visiting Harper to help him clean and get ready to move out of state. When she received a call from Dan asking where she was and if she was with Harper, she refused to answer. At the time, Dan was driving around looking for her.

At roughly 8 p.m., Heather and Harper went for a ride in her truck so he could help figure out what was wrong with it. Heather then noticed Dan was following them and she drove back to Harper’s 244 Empire Loop home.

Heather let Harper out of her truck and told him to go inside, close his garage door and not answer the front door if Dan came up. As she began to leave, she noticed Dan get out of his vehicle and walk into the garage toward Harper, “walking up to him fast, cussing at him.”

Before Dan made it inside the garage, Harper had retrieved his pistol from his bedroom and returned to the laundry room doorway, which opened into the garage.

When Dan approached Harper, he pointed at him and said “you better not point that gun at me,” Harper said. Harper said he pointed the gun at Dan and told him to stop, but he did not, at which point Harper shot Dan in the abdomen.

Dan then bent over, said “you shot me,” and continued toward him. Harper then shot Dan two more times, at which point Dan collapsed at the foot of the stairs, roughly two feet away from him. The first shot caused the wound that killed Dan, while the second shot struck him in the left shoulder and the third grazed the right side of his face.

Harper and Heather both told police that Dan was approaching Harper aggressively at the time of the shooting, and a neighbor also told police that she heard Harper say repeatedly that “he was coming at me.”

Harper said he did not know what Dan was capable of or what he was going to do, but believed Dan would have tried to hit him. Harper did not know if Dan had a weapon, but knew he was mad at him. He said he was “scared for his life” and that he did not want to shoot Dan.

CORRIGAN REFERRED to Montana’s self-defense laws when explaining why he was choosing not to seek charges against Harper.

The first law Corrigan cited allows for the use of force in defense of occupied structures, commonly known as a “castle doctrine” law, as listed under Montana Code Annotated 45-3-103. It states that residents are justified to use deadly force if they believe it is necessary to prevent a person who has entered the structure from assaulting them.

The same law “does not require that the homeowner fear that he may be killed or seriously injured by the intruder before resorting to the use of deadly force.”

Another law, Montana Code Annotated 45-3-110, is commonly known as a “stand your ground” law. It states that “any person lawfully in a place or location and who is threatened with bodily injury ... has no duty to retreat from a threat or summon law enforcement assistance prior to using force.”

State law also protects Harper’s action in brandishing the gun at Dan. Under Montana Code Annotated 45-3-111, anyone with a reasonable belief that a person is threatening them with bodily harm may warn or threaten that person in a fashion up to and including drawing or presenting a deadly weapon.

The final law referred to by Corrigan is listed under Montana Code Annotated 46-16-131. That law stipulates that during a criminal trial in which the defendant has offered evidence of justifiable use of force, it is the state’s responsibility to prove beyond a reasonable doubt that the actions were not justified.

In explaining how those laws justified Harper’s actions as well as the decision not to press charges, Corrigan laid out several facts of the case.

Corrigan argued that Harper had the right to retrieve his pistol and arm himself when he believed Dan meant to confront him, that Dan’s entry into Harper’s garage was uninvited, and that the prior confrontation between the two as well as the way in which Dan entered the garage made reasonable Harper’s belief that Dan planned to assault him.

He also said that even though Harper had the opportunity to retreat into his home, close the doors and contact police, he was not legally required to do so.

Given those factors, Corrigan said, Harper’s use of deadly force was justified.

“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 said. “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.”

Reporter Jesse Davis may be reached at 758-4441 or by email at jdavis@dailyinterlake.com.