KALISPELL – A 24-year-old Kalispell man who fatally shot the husband of a woman with whom he was having an affair will not be charged with a crime, the Flathead County attorney announced Tuesday.
Brice Harper shot and killed 40-year-old Dan Fredenberg on the evening of Saturday, Sept. 22, shooting the man three times with a pistol during a confrontation in the garage of Harper’s Kalispell home. He shot Fredenberg as the man angrily approached him, “charging at him, like he was on a mission,” Harper told Kalispell police.
Flathead County Attorney Ed Corrigan cited several of Montana’s “castle doctrine” and “stand-your-ground” statutes to support his decision not to prosecute Harper.
“I am acutely aware that the Fredenberg family and others believe this matter should be presented to a jury and strongly disagree with the position I am taking,” Corrigan wrote in a letter to Kalispell Police Chief Roger Nasset and other investigators. “I am, however, ethically precluded from charging an individual with an offense, particularly Deliberate Homicide, when I do not believe the evidence and the law will support a conviction. For these reasons, I am declining to charge Brice Harper with deliberate homicide or mitigated deliberate homicide.”
The laws Corrigan refers to state that a person threatened with bodily harm is not required to call on assistance from law enforcement or make an attempt to escape, and is allowed to defend an occupied home or structure by using deadly force.
“Even though Brice obviously had the opportunity to retreat into his house, close the door and call the police, he was under no legal obligation to do so,” Corrigan stated. “Brice had the legal right to arm himself and remain in his laundry room doorway, his fear of Dan notwithstanding.”
In his brief, Corrigan outlines the events that led to the shooting, which included an earlier confrontation between Harper and Fredenberg, which took place at a bar and reportedly involved the amount of attention Harper was paying to Fredenberg’s wife, Heather.
During interviews with police, the woman said Fredenberg had become abusive toward her, drank too much and that she had attempted to end the relationship. She said Fredenberg had pushed and kicked her a week prior to the shooting, and that he was aware of and angered by the relationship she was having with Harper.
On the day of the shooting, she was at Harper’s home helping him prepare for an out-of-state move, and ignored phone calls and text messages from her husband inquiring as to her whereabouts.
She and Harper took a drive around 8 p.m. and realized that Fredenberg was following them, according to Corrigan’s brief. The woman dropped off Harper at his home and told him to go inside and not answer the door.
Instead, Harper retrieved a gun and stood just inside the door leading from his laundry room into the open garage. As Fredenberg entered the garage, Harper pointed the gun at him and told him to stop. When Fredenberg continued moving toward him, he shot the man in the abdomen.
“(Fredenberg) bent over, stated ‘you shot me,’ and, according to (Harper), continued to move towards him,” Corrigan stated in his brief. “(Harper) then shot him two more times and he collapsed at the foot of the stairs leading into the laundry room, approximately 2 feet from (Harper).”
The second and third shots struck Fredenberg in the left shoulder and grazed the right side of his face.
“Were we to charge (Harper) with homicide and proceed to trial, I am convinced the judge and/or jurors would conclude that (Harper) reasonably believed he was about to be assaulted and that his use of force was therefore justified under Montana law,” Corrigan wrote. “We lack the evidence necessary to prove otherwise beyond a reasonable doubt.”
Reporter Tristan Scott can be reached at (406) 531-9745 or at firstname.lastname@example.org.