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When is it Self-Defense?

By Kellyn Brown

At the 2009 state Legislature lawmakers overwhelmingly endorsed the so-called “castle doctrine.” The law made it clear that Montanans have no obligation to retreat when they feel threatened before using deadly force to protect themselves or their homes.

Just months after the session ended, a dispute between Walmart employees in Billings over the length of a work break resulted in a man shooting his co-worker in the head – luckily the bullet only grazed the victim and he survived. Still, one would expect the shooter to face attempted murder charges. But that didn’t happen.

The shooter was released after explaining that he was simply acting in self-defense. You see, his coworker was bigger than him and had apparently punched him in the face. And that justified the shooter to pull out a .25-caliber semiautomatic Beretta handgun and pull the trigger.

Yellowstone County Attorney Dennis Paxinos, who along with other prosecutors and law enforcement officers in the state had opposed the castle doctrine legislation, said the decision not to press charges was in accordance with the “spirit and intent” of the new law.

That same year a fight in a bar bathroom in Ronan between two former friends ended with one fatally stabbing the other. Originally charged with deliberate homicide, the suspect maintained he was being attacked when he wielded his knife and had acted in self-defense. The charges against him were reduced to negligent homicide and he was given a four-year suspended sentence.

The castle doctrine was cited on numerous occasions as the case moved forward. As the defense attorney pointed out, it shifts the “burden to the state.” That means the state must prove that a suspect who used deadly force did not feel threatened, instead of the other way around.

On Sept. 22, a man shot three times and killed Daniel Fredenberg, who had entered the man’s garage on Empire Loop in Kalispell. Fredenberg, according to court records, was confronting the man about his relationship with his wife. But the shooter told police that he felt threatened and said, “I told him I had a gun, but he just kept coming at me.” Investigators say Fredenberg’s wife corroborated the story.

The suspect was not charged, nor will he be, according to Flathead County Attorney Ed Corrigan. In citing the castle doctrine and “stand your ground” concept, Corrigan said, “If you’re in your home, under current law, and you think reasonably that you’re about to be assaulted, you can kill them even though you aren’t facing deadly force.”

What makes this case different than the others is the victim, according to court documents, had not yet attacked the shooter. Deadly force was justified because it was presumed that he would. Under that interpretation, it appears that if you’re at anyone’s home and they assume you will assault them, they can kill you and call it self-defense. Whether the killer was correct about that assumption is beside the point.

If that’s the case, the castle doctrine should be revisited at the next Legislature. It’s one thing to shift the burden of proof to prosecutors and quite another to make it nearly impossible to prosecute a complex case such as this.

Ironically, House Bill 228 was introduced as a way to “clarify” what gun owners view as gray areas in case law. It may be well intentioned and I agree that anyone should be allowed to defend him or herself with a gun or other weapon if they feel threatened. The problem is, not defining what constitutes a threat has simply created another gray area.

Corrigan acknowledged that his decision was controversial in the community, but it’s hard to blame him for any of this. Like he said, “As the prosecutor, I’m elected to follow the law.”