Shooting was legal but not necessarily right

Flathead County Attorney Ed Corrigan and Kalispell Police Department officers are defending their handling of the shooting death of 40-year-old Dan Fredenberg.

Fredenberg was shot and killed Sept. 22 by Brice Harper in Harper’s garage with three shots fired from a .40-caliber Smith and Wesson handgun. 

Corrigan announced Tuesday that Harper will not be charged with a crime.

“Under the ‘stand your ground’ law, a person is not obligated to retreat to a place of safety or summon assistance from police before resorting to force to respond to a perceived threat,” Corrigan said at a news conference Wednesday.

“The fact that [Harper] went into the house and retrieved the gun indicates to me that at the time — and I think, again, the officers would agree — that he realized Dan had stopped [his vehicle] and was perhaps approaching the house and perhaps intended to engage in confrontation,” Corrigan said. 

“Under Montana law, he did have the right to arm himself and, yes, under Montana law he had the right to stand in that doorway and confront Dan as Dan entered the garage without invitation.”

Corrigan explained that, despite the legality of Harper’s actions, he did not believe they were the right actions.

“Although you may not know from some of the blogs, I think most reasonable people would believe that the choice between taking someone’s life or causing grievous harm and taking the opportunity to retreat into your house safely and close the door and call police, that that’s probably the reasonable thing to do, at least that is my opinion,” Corrigan said.

He went on to say that despite his opinion, Montana law does not require a person to take that action in his or her own home.

“That’s the unfortunate thing about this whole situation,” he said. “Cooler heads and a little more thought into the consequences of one’s actions and this whole tragedy could have been avoided.”

Both Corrigan and Kalispell Police Chief Roger Nasset commented on the changes to Montana’s self-defense laws in 2009 that broadened citizens’ rights and allowed for Harper’s actions to be considered justified.

“Chiefs of police and the county attorney’s office and different groups actually opposed the language of the law the way that it’s currently written,” Nasset said. “However, it is the law that we have to apply at this time, and there is a law that does say there has to be reasonable fear. So it doesn’t allow free gratis, essentially, to decide to use force.”

Corrigan specifically noted a shift in the burden of proof.

“It used to be that the defendant who claimed self-defense had the burden of proving to the jury’s satisfaction that he was acting in reasonable fear of his life or in fear he was about to be assaulted. That seemed to make sense because he’s the one who knows what he’s thinking, he’s the one who knows what’s motivating him at the time and he’s the one who should have to convince the jury,” Corrigan said.

“The Legislature, however, changed that and made it my responsibility to prove to a jury beyond a reasonable doubt that he was not justified in using force. That really increases our burden if we were to proceed to trial with a case of this sort.”

Corrigan also explained why he and police made the joint decision to released Harper after he had been in custody for 12 hours.

“I had no reason to believe Brice was a flight risk or posed a threat to anybody else at that particular time,” Corrigan said. “I think, had we chosen to hold him and present the case to a magistrate, there would have been probable cause to keep him in custody. But given the circumstances as I knew them that morning, I did not think it appropriate.”

When asked why it took two weeks to make a decision on charges, Corrigan said it was an involved process that included waiting a week for the police report to be compiled, discussing the case at length with police and considering all the facts.

“What makes it very difficult — as is usually the case in something like this where you cannot respond to what the victims feel needs to be done — what makes it most difficult of all is not just the fact that Dan is dead, but that the Fredenbergs and their family and their supporters strongly believe that my decision is wrong, that this should be a case presented to a jury and a judge,” he said.

“But again, as I said in my memo, I have to make a charging decision based on what the law and the facts lead me to believe can be accomplished at trial. When I conclude the law and the facts can’t support conviction, I am ethically precluded. I can’t charge somebody with deliberate homicide when I don’t believe I can convict them of that crime.”

As of Wednesday evening, a Facebook page titled “Justice for Dan Fredenberg” had received 773 likes and a Change.org petition page seeking to pressure Corrigan into bringing charges against Harper had collected 365 signatures toward its goal of 500.

Harper has not returned several messages left on his cellphone voicemail.

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