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.