Numerous writers, most recently Emily Bazelon of Slate, have touted the Brice Harper case from Montana as evidence against the castle doctrine, which allows people to use lethal force when it’s necessary to keep intruders off their property. These accounts tend to minimize the threat that Harper faced when he shot and killed Dan Fredenberg, and while it’s a difficult case, it hardly proves that the castle doctrine is bad policy.
Harper was in some sort of relationship (he refused to call it an “affair” in interviews with police) with Dan Fredenberg’s wife, Heather (who said it was “pretty much” an affair). The Fredenbergs’ marriage was troubled; Heather told police that the two were mutually abusive, that Dan had a drinking problem, and that she’d told her husband she was “going to look for someone else.” In August, Dan and Harper got into an altercation at a local restaurant, and a bouncer intervened.
On September 22, Harper and Heather were in a car together when they realized Dan was following them. They returned to Harper’s house; Harper got out of the car, began walking toward his home, and realized that Dan Fredenberg had stopped his car, too.
Here’s how Bazelon describes what happened next:
Heather Fredenberg told [Harper] 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.
Bazelon drew this summary from a letter written by the prosecutor who declined to try Harper, but her word choice — “approached,” “claims” — fails to convey the urgency of the situation. Heather Fredenberg backed up Harper’s testimony that her husband’s “approach” was in fact aggressive, and that Harper warned her husband that he had a gun. She also told police her husband “would have tried to kill” Harper if he’d gotten his hands on him. What’s more, Harper says he pointed his gun at Fredenberg and told him to stop, but Fredenberg continued toward him.
As Jacob Sullum noted over at Reason, Montana’s recent expansions to its castle-doctrine law are irrelevant here. Even before the changes, the state allowed lethal force in cases where an intruder is being “violent, riotous, or tumultuous” and such force is needed to prevent an assault.
Bazelon seems to think that Harper should be held accountable for his decision to arm himself and wait rather than lock himself inside — that is, she believes in a “duty to retreat.” Retreating might have been the prudent course of action in this particular case, though it’s hard to say how Fredenberg would have reacted — would Bazelon expect Harper to stay hidden as Fredenberg damaged his property, for example? — and it’s even harder to blame Harper for a decision he made while he was clearly being threatened with physical violence.
Also, it’s worth remembering that not all home intrusions happen in the context of infidelity. For the law to impose a duty to retreat on Harper, it would have to impose a duty to retreat on everyone — meaning that home intruders create a duty on the part of their victims not to hurt them. Such laws make a mockery of self-defense and property rights, and embolden criminals.
By all accounts, Harper was on his own property, faced an imminent assault, warned his aggressor he was armed, and fired his gun only when Fredenberg refused to stop. The surrounding context makes this case difficult, but it’s hard to see how a different law could have averted this tragedy while maintaining citizens’ right to stand up to home intruders, rather than cowering from them.
— Robert VerBruggen (@RAVerBruggen) is a deputy managing editor of National Review.