Gun Rights Gone Mad: Montana's Castle Law Should Go Now
To read the story of the senseless death of Dan Fredenberg at the hands of Brice Harper makes it difficult to comprehend the logic of Montana’s “castle law,” which, to judge from appearances, places virtually no limitation on the power of individuals to use deadly force in defense of their property against what is, at most, a minor common law trespass.
I write this in both sorrow and anger, and do not do so as one who has a reflexive hostility to laws that liberalize the ability of individuals to possess and use firearms. For a long time now, I have been deeply suspicious of anyone who attributes mass killings -- such as the death of twelve innocent people in Aurora, Colorado -- to weak gun control laws. I think, as well, that the case for allowing individuals in good standing to carry concealed weapons is, at the very least, credible, and perhaps even convincing. I also think that it is imperative to withhold making any judgment about what happened in the Trayvon Martin case, in which the issue of self-defense surely has to be examined closely before any verdict can be rendered.
But the situation that took place in Flathead County, Montana, on October 9 is worlds apart from any of these recent incidents. In this case, Fredenberg, 40, was upset that his 22-year-old wife was romantically involved with Brice Harper,24, and -- being somewhat of a hothead -- he went to Harper’s garage to give him a piece of his mind. The unarmed Fredenberg was shot three times, and killed. That Harper should escape charges for homicide, perhaps even first-degree murder, is most incomprehensible. But that's exactly what happened under the castle law.
Start with one simple fact. Why three bullets? It is preposterous to believe that the last two were fired in any kind of self-defense. If either or both of those bullets contributed to the death, then the excessive use of force should be punishable whether the incident took place in Harper’s garage or on the public street. But even if for some reason there were an attack, every civilized system of criminal law recognizes that disproportionate force is an impermissible response against minor threats. Let someone come at you with bare hands, and you can defend yourself with bare hands -- at least after he strikes first. Harper should be no exception to this rule. It could well be that Fredenberg might have inflicted some bruises on a man just over half his age -- but the correct response in that case would have been for the law to prosecute him for an assault and to award damages to Harper after the harm takes place. It is never to let a minor attack trigger a fusillade of bullets that takes a life.
The problem here is not a new one. Indeed, at one time the question was whether one could set a spring gun that could maim or kill to defend one’s property against theft (to which the answer has always been an emphatic no). The legal response was to use other criminal sanctions.
The case of the defense of life produces a different answer when there is a threat of deadly force -- but that was hardly the case in Flathead County. It is a true travesty that the National Rifle Association and other groups have supported this major extension in the legally permissible use of guns, which raises the defense of property against simple trespass to near-sacred levels.
Property, of course, deserves strong legal protection, but in this case it would have prevented a death if Harper had simply called the police on his cell phone instead of taking the law into its own hands. A man’s home may be his castle, but even castle owners shouldn't be allowed to use deadly force to defend themselves against modest intrusions on their property. Other remedies are far better suited for the kind of conduct that brought Dan Fredenberg to a grisly, untimely and unnecessary end.
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Comments:
Jun '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I don't consider an angry drunk invading my home to be a "modest intrusion".
May '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
It wasn't just simple trespass on the property, it was trespass in the home, ie the garage. You might not agree with the response but the guy had no business there.
May '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I think the use of force was absolutely appropriate as is Montana's law and the facts support the use of deadly force.
If somebody wishes to not be shot they should not invade another man's property in anger. I think Mr. Harper was well within his rights and it is better to be judged by 12 than carried by 6.
Nov '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
"Let someone come at you with bare hands, and you can defend yourself with bare hands -- at least after he strikes first."
A small woman should wait until a strong man strikes her, and then she can defend herself with her bare hands? Is this your meaning?
Oct '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Ever had a really pissed off drunk come at you? First thought... this guy could beat me to death. At this moment I don't give a damn about the law, I want to survive.
Happen in my home?? Mr. Shotgun is next to the door, and I will kill the guy before I find out that he is tough enough to kill me.
Richard... I entirely disagree with your premise. To quote @BrentB67:
"it is better to be judged by 12 than carried by 6."
Jul '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Mr. Epstein, you may be a brilliant lawyer and constitutional scholar, but you clearly have not even the vaguest concept of self defense. Your 3-bullet comment is ample evidence of that. One fires a weapon until the threat ceases! If you get your ideas of bullet effects from the movies, then you can be excused for thinking that a handgun bullet will knock over an assailant, but in the real world no such effect occurs and such ignorance should not be allowed to then influence laws that would be detrimental to regular people trying to protect themselves. In the real world gunfights are brief, brutal encounters, wherein one often fires repeatedly without necessarily noticing how many rounds were discharged as the threat is the overwhelming presence. In the real world assailants within twenty-two feet will reach you before you have the ability to draw and fire. In the real world multiple rounds will be discharged in an incredibly brief time. Think on that. If you feel the Treyvon Martin case still is "undetermined" then you really have no place making these comments, especially since you clearly have no knowledge of what you speak.
Apr '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
fusillade, not fuselage.
Aug '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I have upmost respect for Mr Epstein, but it's a tougher situation than it seems, and BrentB67 makes a good point. All you have to do to hurt someone-- a lot more than you planned to-- is push them onto the ground. They can bang their head against the ground and bleed. Punch someone in the jaw and what if they bite their tongue (off). What if someone chokes you and accidentally breaks your trachea (common in untrained non-martial artist chokes)? Just risk that? That's why people have guns.
Why second guess how many shots are fired? I don't know of anyone who thinks you shouldn't fire at least two shots in self defense, and depending on the gun it isn't hard to get a third off.
With all that said... emotionally it's hard to think about the situation. It's sad and there is something petty about an unarmed man being shot in a fight, I think Tommy DeSano made that point talking about the Martin shooting.
Apr '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Picking one case to to criticize this law seems like a stretch. You could just as easily find a case where someone was able to defend themselves and their family successfully because of the law. The victim being shot 3 times is also noted as evidence of a cold blooded murder. Like he dropped him and put 2 more in him to finish him off. To me, 3 shots is more indicative of panic firing while being attacked in close quarters.
Aug '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
If Mr Fredenberg lived in any other number of countries and happened upon his wife and Mr Harper in flagrante delicto, he could have legally killed them both .
Just a comment on the quality of law. Not always what we hope for.
Edited on October 27, 2012 at 11:21pmSep '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Why three bullets? Maybe that's what it took to stop the threat. As others have already said, there are too many unknowns here. I am surprised that Mr. Epstein is willing to withhold judgement on the Martin case until all the facts are in and yet so ready to jump to conclusions here.
Jul '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I hope Fredenburg's family brings a civil case against Harper and takes away his "Castle".
Jul '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Dr. Epstein trots out some tired dictums that should be challenged here.
One, fists to meet fists: A bare-handed fight between two trained and earnest men will end in the death of one of them in 30 seconds or less. If only one of the men is trained, the time goes down, not up. An opponent is trained unless you know he is not. The rules of proportionate force in the law are mandates to submit to your own execution, and are reasonably applicable to bar fights and schoolyards, not existential threats. The law is a ass on this point, thus the American recourse to jury trials.
Two, excessive force: The idiot was porking another man's wife and, had the husband been of sound mind at the time, Harper would never have been heard from again. Happens a lot. Instead, probably in a rage, the aggrieved husband provided himself as a target imagining himself prevailing in a violent confrontation. This was more opportunity than Harper deserved to survive, and he took it. The next time he would not have been so lucky.
Three, prevented a death?: Pffft. My sympathies are with the aggrieved husband and his family, but...
Jul '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Rocket City Dave - I hope you never find yourself in a situation where you need to defend your life. And your above comment comes back to bite you.
May '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I don't know enough about the circumstances to offer an opinion on the particulars, but to take it out of the gun ownership milieu, it reminds me of a situation in South Carolina many years ago where a farmer was angry that kids were using his property for motorbike racing so he strung up a wire across the path and a trespassing teenager was killed. I don't think he was charged with a crime but I think he should have been.
Edited on October 27, 2012 at 9:29pmRe: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I agree with you, Prof. Epstein. One of the consequences of messing with another man's wife is that you may have to duke it out (verbally or physically) with an angry husband. The fact that you can lure that angry husband onto your property and murder him without being prosecuted is ludicrous.
I wonder if the commentators above would be fine with this scenario:
I yell rude, vile things at women walking by. As soon as one walks on my lawn to lecture and/or slap me, I pull a gun out of the bushes and shoot her.
Apparently that's protected in Montana. Ridiculous!
Jul '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Unarmed does not mean undangerous.
And three rounds is actually a low number for most shootings.
Jul '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Mao Zehedgehog: I agree with you, Prof. Epstein. One of the consequences of messing with another man's wife is that you may have to duke it out (verbally or physically) with an angry husband. The fact that you can lure that angry husband onto your property and murder him without being prosecuted is ludicrous.
I wonder if the commentators above would be fine with this scenario:
I yell rude, vile things at women walking by. As soon as one walks on my lawn to lecture and/or slap me, I pull a gun out of the bushes and shoot her.
Apparently that's protected in Montana. Ridiculous! · 4 minutes ago
Speech is protected - at least in this country. Adultery may be morally disgusting, but not legally. Storming into another's home with clear intent to be violent is not legal.
One doesn't have to like the shooter or agree with his behavior to find this within the bounds of rational behavior.
Aug '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Mao Zehedgehog: I agree with you, Prof. Epstein. One of the consequences of messing with another man's wife is that you may have to duke it out (verbally or physically) with an angry husband. The fact that you can lure that angry husband onto your property and murder him without being prosecuted is ludicrous.
I wonder if the commentators above would be fine with this scenario:
I yell rude, vile things at women walking by. As soon as one walks on my lawn to lecture and/or slap me, I pull a gun out of the bushes and shoot her.
Apparently that's protected in Montana. Ridiculous! · 34 minutes ago
I don't agree with the scenario. It is why we should review the law to try and eliminate the scenario. But that's not what we really expect to happen. We all know it's frequently far less trivial than that. Do you need to wait until someone has kicked in your door before you decide to use your gun? Does someone have to chase you with a knife (you would be lucky to see them pull it!)? Not in Montana.
Jul '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Call the police?
You have your lover at your house with her two kids when her drunken husband shows up in the house.
Do you think he will give you time to call 911 and then wait around till the police show up? If the police show up since that is not certain in many rural areas. Or is it more likely that the enraged drunken husband will use the garage full of sharp and heavy tools to hurt or kill you? Given that is the case it is always best to be the one that does not get hurt or killed. Harper did what he had to do to stay alive. You may not like it, I doubt that Harper likes it but that is life.
Why three bullets? Most likely because that is how many shots it took for the man to fall over. Most untrained people empty the gun out of reflex in a situation like this.
No, Mr. Epstein you are wrong on this one.