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:
Aug '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I have no opinion on the law at this point, as several people have pointed out there are facts not presently in evidence. From the description, it seems to me that there is a case that the force was too much for self-defense, which makes this different from, say, the Martin Case.
Is the case going to be taken to trial, or will the DA refuse to prosecute?
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I'm glad you raised the subject because the press assumes that conservatives have identical views on the subject. Comments here show that's not the case.
Aug '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I'll tell ya what, Mr. Epstein. How about if I enter your garage and catch you by surprise. I'll be unarmed. You may not use a firearm to defend yourself. Let's see how long you last.
Maybe that will give you a different perspective.
Jan '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
May I ask for more information?
The law has two equally legitimate elements. First, you have the right to use enough force to defend yourself. Second, you have the obligation (every time and everywhere) to do what you can to mitigate or remove a threat short of killing.
The problem with the castle law, as here described (I'm not a lawyer so I'm only going by what Professor Epstein and the linked story report) is that it in this case, it didn't require Harper to try to mitigate the threat in any way. The mere fact that Fredenberg was on the property was taken as enough evidence to justify killing him.
From the text, I'm not clear on whether the castle law requires the castle owner to try to reasonably stop the threat first.
Does it?
If it doesn't, I'd agree with Professor Epstein.
Feb '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Easy way for Fredenberg to still be alive: Stay out of Harper's garage.
Just curious. Was Harper supposed to wait until Fredenberg was bouncing his skull off his garage floor before he was allowed to defend himself? Or was he just supposed to hide inside his house, hoping the cops bothered to show up before Fredenberg kicked down a door and did his best to kill him?
Because I've heard too many anecdotes along those lines- cops called, showed up after the action was over, often too late.
Which is the entire point behind Castle laws- when seconds count, the police are only minutes away.
And pardon my cynicism but in the story it was mentioned that Fredenberg was the son of a retired cop.
Failing that, I bet this story would generate no controversy at all. Ordinary citizens can be assaulted, robbed, and murdered without too much concern by the government.
But a cop's son? That's different. Steps must be taken, and something must be done.
So let's all wring our hands, think deep thoughts heavy with angst, and condemn the guy who had the temerity to defend himself against a cop's son.
Jun '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Fredenberg is described as a drinker, "abusive..both verbally and physically." Mr. Harper stated "Mr. Fredenberg was charging toward him, angry, 'like he was on a mission,' and that Mr. Harper was scared for his life." That sounds like more than "common law trespass."
As Devereaux mentioned at #6 above, within 7 yards, a person can reach you before you can even produce and discharge your weapon. And as to the number of bullets fired, a single bullet will not necessarily even be felt by a person as anything other than a severe burning sensation.
You used the phrase "defense of their property". Property is rarely allowed to be defended. Mr. Harper asserted this a case of "defense of person" and the authorities concurred.
My state (NC) has Castle Doctrine. You need not retreat within your home (or anywhere else you are legally allowed to be) but can only use deadly force if you are "in fear of imminent death or grievous bodily harm." Somebody swiping your Big Screen? You can try to stop 'em, but you can't shoot 'em.
Apr '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
KC Mulville:
Second, you have the obligation (every time and everywhere) to do what you can to mitigate or remove a threat short of killing.
I'm not a lawyer but I don't think that this is true in most castle laws, or at least Colorado's as it was explained to me by a non-lawyer. My understanding is that if someone is in your house, not a relative and not someone that you invited then you have the right to use violence. This is referred to "no retreat" and you are apparently not required to do much to avoid violence. The burden is on the trespasser. Presumably there is some "reasonable man" language in the law but I'm not sure if being "reasonable" requires showing fear of harm or just wanting the person off your property.
Jan '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
As others have said, the fact that Harper fired three times is neither indicative nor dispotive of guilt; if anything -- and depending on the firearm involved, which is never mentioned -- it might show some restraint.
That said, the article is maddeningly vague when it comes to the nature of the actual confrontation. At one point, it sounds like Harper lay in wait, though it later quotes him saying Fredenberg charged him. Likewise, it never mentions what -- if anything -- said to each other. "Harper, come out here and talk to me!" and "Harper, I'm going to kick your [explititive]!" present rather different situations.
Edited on October 28, 2012 at 4:43pmDec '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
This is precisely why I fear giving Richard any power over the law whatever.
He speaks at such length on every subject that it is nearly guaranteed that he will eventually produce something so [misguided] that only a professor of law could have conceived of it.
This is one of those cases.
Edited for Code of Conduct
Edited on October 28, 2012 at 10:11pmMay '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Dr. Epstein, you need to exit the faculty lounge, get out past the leafy groves of academe more often, and spend some time where the rest of us live.
Oct '10
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
I think the problem comes with relying upon the New York Times' self-serving account of the prosecutor's self-serving description of why he (the prosecutor) took the decision he did. Other reports indicate that a simple plea of self-defence would be justified, and that the Montana legislature had simply codified the position at common law.
Those wishing to see the law the prosecutor is complaining about can see it here (pdf).
As to what is "reasonable force", I like the discussion in Palmer v R, [1971] AC 814:
Jan '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Well, as you note, within reason.
Quite a few years ago, a neighborhood bully took my son's glasses. The kid was three years older than my son. I went over to the kid's house to ... umm ... exchange pleasantries with the parents and get the glasses.
Had I been in a castle law state, was I a legal target for shooting from the moment I stepped onto the walkway to his door? (After all, I wasn't a relative, wasn't a government official, wasn't on business ... and I wasn't in a pleasant mood. But to knock on the door, I had to step onto his property.)
Edited on October 27, 2012 at 11:21pmMar '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
An eighteen-year-old widow in Oklahoma shot an intruder with a shotgun. All he had was a knife. It made the news a while ago.
Some Somali pirates attacked a ship in the Indian Ocean, as pirates are wont to do. Unfortunately for the pirates, it wasn't a commercial vessel – it was a U.S. Navy missile frigate.
Both are clearly cases of "disproportionate response," which is one of the silliest concepts out there. The Israelis catch this garbage all the time. Since the Palestinians are lobbing rockets indiscriminately into Israel, the "proportionate response" would be to indiscriminately lob rockets back.
Should the Navy have waited for the pirates to fetch a bigger boat?
May '12
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Castle doctrines usually don't apply to property in general but the domicile. As soon as you cross the threshold into the house without being invited then you fall under castle doctrine. Just being on the property is not sufficient.
KC Mulville
Well, as you note, within reason.
Quite a few years ago, a neighborhood bully took my son's glasses. The kid was three years older than my son. I went over to the kid's house to ... umm ... exchange pleasantries with the parents and get the glasses.
Had I been in a castle law state, was I a legal target for shooting from the moment I stepped onto the walkway to his door? (After all, I wasn't a relative, wasn't a government official, wasn't on business ... and I wasn't in a pleasant mood. But to knock on the door, I had to step onto his property.) · 14 minutes ago
Edited 11 minutes ago
Mar '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Dr. Epstein. I thoroughly enjoy your podcast and wisdom. The only time I ever think you are off-base is 2nd Amendment where you are squishy and don't seem to get the real world and what the amendment is protecting. I don't know if it is being from the city or what, but you are WAY off base on this one. Many above have said what I would say and likely better so I won't repeat it other than to say when someone invades your home you have absolutely no idea what their intent is nor what their capabilities to harm you are. The law is right and the shooter's actions were right (as described in the article). My only other thought was that it is doubtful the story is accurate - - they NEVER get the story right and there could be all kinds of missing and wrong information that make the shooter's actions even more correct for the circumstances. Those who disagree will change their mind if they are ever in their home when a large male decides to enter. You have to assume he is there to cause you harm.
Jan '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
Well, to be clear, the whole point of a gun is disproportionate response. If you pull out a gun, that's intended to convey to the attacker that you're going to use more force than he is, so the attacker had better re-calculate his preference options.
When a cop pulls out a gun and says "freeze," remember, he's giving the other guy a chance to stand down. The whole logic of pulling out the gun is that the cop is advertising that he will use more force than the other guy - - so it's a very rational act, and it's intended to prevent violence, rather than provoke it.
Again, however, we must remember the other requirement. You're required to try to stop the violence if you can. It may not be possible under sudden circumstances, but if it is possible, you're required to do it. In essence, if time and circumstance make it reasonable, you're expected to threaten and warn a person about deadly force before using it.
It sounds as if this castle law removes that idea. You can just start shooting.
If so, I'd amend that law.
May '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
CoolHand: This is precisely why I fear giving Richard any power over the law whatever.
He speaks at such length on every subject that it is nearly guaranteed that he will eventually produce something so idiotic that only a professor of law could have conceived of it.
This is one of those cases. · 30 minutes ago
Wow, I doubt if Richard wants power over the law, but I don't see anything idiotic in his analysis.
Apr '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
The linked article states that the shooter fetched his gun from the bedroom. Does that mean he went into the house and returned to the garage?
If that's the case, IMHO, I don't find it justified. An earlier comment mentioned the 18-year old in OK that shot an intruder. Entirely different circumstances. She was cornered and threatened by a violent criminal. She wasn't shagging another man's wife nor did she have time to go to another room and return with her gun. She deserves a medal.
Harper? I'm not convinced. But, as in the Zimmerman case, I wasn't there. All I know is what I read in the papers.
Edited on October 27, 2012 at 11:51pmJan '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
OK. Thanks. Didn't know that.
May '11
Re: Gun Rights Gone Mad: Montana's Castle Law Should Go Now
The problem with some lawyers and judges is that they think being completely untrained and ignorant of a field of human knowledge -- for Prof. Epstein it is self-defense and for Judge Posner it is economics and just about everything else -- is no bar to spouting opinions as to what's what.
Three shots in self-defense is completely normal and I would never advise anyone to shoot less. Once you make the decision that you are in sufficient danger to shoot someone, then you should make sure that you stop him. First shots often miss and you don't have time to wait and see if that first shot hit or if it stopped him if it did hit.
I think if a man has reason to be angry and violent, such as if I had been sleeping with his wife, and he comes uninvited onto my property, then I think I would have every right to expect that he intends to be violent. I am not required to submit to his violence.
The man got what he deserved. I hope the juries in Montana are wiser than Prof. Epstein.