Earlier in the day of Sept. 22, 2012, Dan and Heather Fredenberg were once again feeling in love. Their second wedding anniversary was three days away, and though their first two years of marriage were turbulent, the couple woke up that day gushing. From the morning shift at the drive-thru coffee hut where she worked, Heather texted Dan: "Hey baby have i told you lately how much i love you?!...Thank you for always being by my side.!"
Dan received the text message at the shop where he refurbished classic cars for resale. That day he was prepping a 1978 Z28 Camaro for a new engine. He responded, "Thank u beautiful. I wish u knew how deeply I love u even though i cant always show it." They made plans to meet after Heather got off work to lower the engine into the Camaro's front end.
Even if things had happened differently that night, there is reason to believe their marriage would still be over. Members of Dan's family say their union was on an inexorable path toward dissolution. Heather had already disclosed her relationship with another man to Dan, and Dan had expressed to his father that things were coming apart. But what happened on and in the weeks following the night of Sept. 22 make up the sort of tragedy that transcends reason. Hours after exchanging text messages, Dan would say his final words to Heather as he crumpled to the floor of an empty garage: "Call 911."
Six days later, Sept. 28, Flathead County issued Dan's death certificate. It read: "Date of Birth: 09/19/72; Spouse: Heather Fredenberg; Manner of Death: Homicide; Date and Time of Injury: September 22, 2012 20:38 Military; Describe How Injury Occurred: Victim was shot multiple times by his wife's boyfriend."
On Oct. 9, Flathead County Prosecutor Ed Corrigan issued a press release. Corrigan concluded:
"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. 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 or Mitigated Homicide."
In his decision, Corrigan invoked a law updated in 2009 by the Montana State Legislature often referred to as the Castle Doctrine. The law gives a homeowner the right to use lethal force if the individual "reasonably believes" force will "terminate the other's unlawful entry into or attack upon an occupied structure." The "wife's boyfriend," Brice Harper, was released from police custody 10 hours after fatally shooting an unarmed Dan. By the time an ambulance arrived, Dan lay in a pool of blood on the concrete floor of Harper's garage, already dying.
"Let's get married"
Dan Fredenberg met Heather King at Copper Mountain Coffee, a drive-up coffee shack in Kalispell. She had tan skin, glossed lips and black-cherry hair that escaped its bands by the end of her shift. When she handed Dan his 20-ounce mocha with whipped cream, they allowed the moment to linger. After a few months, Dan asked Heather for her number. She wrote it on the back of a receipt. Dan texted her a week later.
In mid-September 2010, after a few months of dating, Dan was putting the finishing touches on a silver 1970 Corvette with black racing stripes. He'd already invested some $60,000 in the Corvette. He planned to trailer the car to Las Vegas for the Barrett-Jackson auto auction where he thought he'd get his greatest return on investment. The day he was set to leave, a doctor told Heather she would be having twins. She was crying when she called Dan. He invited her to Las Vegas.
On Sept. 25, 2010, the Corvette sold for $30,000 at auction. Hours later, in the hotel elevator, his mind liquid with tequila and debt and the prospect of fatherhood, Dan turned to Heather. "Let's get married," he said.
Friends and family of the couple agree Dan and Heather were genuinely in love with one another, but their love came with baggage. Dan complained that Heather was unreliable. Heather felt that Dan drank too much and spent inordinate time and money on his cars. She said that Dan was abusive with her. She admits that she was abusive with him. Dan's father and former Kalispell police detective, Ron Fredenberg, remembers Heather was emotional and would suddenly, hysterically become unhinged. Dan, he says, struggled to handle the pressures of a new family. "The real problem," Ron Fredenberg remembers, "was Heather was 21 going on 15. Dan was 40 going on 25." (Dan turned 40 three days before he was shot. Heather was 22.)
Tammy Kampf, Dan's cousin, remembers Dan as a "big kid" who loved practical jokes. "He was just always smiling," she says. "He just had a look when he was up to something." She remembers Dan, who even in middle age had the stickish physique of a 10th grader, used to wear a mullet hairdo to "hide his skinny neck."
Ron Fredenberg and Kampf both remember Dan drinking often, but struggle to recount instances of excess. Ron Fredenberg recalls Dan getting in two fights in his life, one which he lost decisively (he was sent to the hospital), and one which he "probably lost." Heather's own recollections of Dan's behavior can be difficult to dissect. "I saw a side of Dan that most people probably never saw ... He would ... strangle me, choke me. He'd tackle me or bite me or slap me across the face," she remembers. "But he was also a very gentle person, you know? He hated confrontation."
According to Heather, their relationship troubles came to a head one night in mid-July 2012. After work, Heather called Dan. She left him messages. No response. She picked up their infant twins from a friend's house and called Dan again. Still no response. The evening became night and she began to worry. She drove out to a garage where Dan sometimes worked and drank beer. She called the police station, the hospital. He was nowhere. That night, Heather remembers, she decided something would have to change. Around 12:30 a.m., Dan returned home "drunker than hell." They fought. She gave him an ultimatum: Dan would straighten out or she'd "start looking for someone else."
A few days later, Heather says, she met Brice Harper.
"I see it now"
Since the night of Sept. 22, Harper has been difficult to track down. He has never spoken to a reporter and, because he was never charged with a crime, his testimony of what happened that night has been sealed from public view. What is known is that Harper was 24 when he met Heather at Copper Mountain Coffee. He was an employee of Franz Bakery, a company for which his father is the Spokane office's general manager. In photos, he appears to be thick-set, like a fullback, with short-cropped dust-colored hair. In Kalispell, he would be difficult to pick out of a line-up.
Heather met Harper the same way she met Danhe bought coffee from her. Heather would write him love notes on the back of receipts. Harper would call her after work and they would drive around for a few hours before Heather had to return home. "He had a lot going for him," she says. "He had a good job. He gave me a lot of attention."
When she met Harper, Heather disclosed the relationship to Dan. A mutual friend of the couple, who has requested to remain anonymous, said that Dan was upset by the relationship, but understood his role in pushing Heather away. Heather has maintained that she and Harper never had sex.
One day, driving through an open field west of Kalispell, Harper asked Heather if she wanted to "do something crazy." He pulled over to the side of the road and reached under the truck's seat. He held a pistol. Heather had never shot a gun, and as she wrapped her hand around the grip, she felt like a criminal. She remembers the exhilaration of the detonation. "It hurt my ears," she says.
After several weeks, Harper started to make Heather nervous. One day, she received a text message from Harper asking what she was doing. She responded that she was at a work meeting at a local restaurant. A few minutes later Harper appeared at the restaurant.
Then, on Aug. 19, Heather and Dan went to the raceway north of Kalispell. Heather was trying to distance herself from Harper, and things with her husband were showing signs of improvement. "Dan was really trying," she says. "I don't think I saw it then, but I see it now."
After the race, in the parking lot, Heather noticed a guy sitting in a pickup truck with the engine running. She knew that Harper had gotten a new truck, but wasn't sure what it looked like. She pointed him out to Dan.
Driving back to town, the pickup truck began tailgating Dan and Heather before accelerating past them and disappearing. Twenty minutes later, Dan and Heather were at Fatt Boys Bar & Grille drinking beer with friends. Heather noticed Harper sitting across the bar. She told Dan. They ignored him.
Around last call, Heather went outside for a cigarette. Harper followed her. She says she told him to leave her alone. Dan came outside and confronted Harper. She heard Harper say, "I just wanted to make sure she's all right."
Dan responded that Heather was his wife and he would take care of her. Heather remembers Dan saying, "Let's go," as if he wanted to fight. Harper responded, "I'll blow your fucking head off."
A bouncer told the men that there would be no fighting.
"Oh my God, that's Dan"
Empire Loop corrals a tract of flat land and cookie-cutter duplexes northwest of downtown Kalispell. The lawns are all tightly cropped, the pavement is smooth and the cross streets are named for icons of American money-making: Ford, Carnegie, Rockefeller and, because there was still one more street to name, Trump.
On Sept. 22, Brice Harper was moving out of his duplex near the intersection of Empire and Vanderbilt. He was preparing to move to Idaho the next morning and spent the day loading furniture and boxes into a rented storage unit. Sometime before noon, he texted Heather to ask if she would help him clean after she got off work.
Around the same time, Heather texted Dan the sort of love notes they had exchanged in the early months of their relationship, but their rediscovered adoration quickly turned sour. Her Tahoe was making a strange sound and after agreeing to help him put the engine in the Camaro she asked Dan if he could fix her SUV. Dan said he needed to finish the work on his Camaro. A fight ensued. Dan texted: "Every day u have some reason 2 throw a fit n make it impossible 4 me 2 do what i need 2 get done. When this car is done i will help u with ur car."
Heather responded: "Im just so stressed and i have put so much money in the last week towards the camaro and i still haven't gotten anything i need done. Im out of money and im scared sorry..."
That afternoon, Heather brought their twin boys to Harper's house. The duplex was close to empty. "All the furniture was out of the house. There was some small stuff, pictures...", she says. She remembers seeing a gun on Harper's bedroom windowsill.
At some point, after Harper had ordered pizza from Domino's and Heather fed the twins, she checked her phone, which was hooked up to a wall charger. She was surprised to find the phone's power off. When she turned it on, Heather had received two text messages from Dan: "Its getn late. Ill c if jerry is home. I should have had the motor in by now." And: "Now its 8...Cant you ever do what u say u will without screwing wit me!"
Heather says she called Dan at 8:23. He told her he was driving around looking for her. He asked her if she was with Harper. She didn't answer. Dan hung up.
Heather then asked Harper to drive around the block with her to diagnose the sound her Tahoe was making. They strapped the twins into their car seats and started down the street. Heather noticed headlights in the rearview mirror. She said, "Oh my God, that's Dan." Dan had never been to Harper's house, and she didn't understand how he had found them.
She remembers Harper responded, "I'm not scared. I have a gun."
Heather pulled up to the curb in front of Harper's house. His garage door was open and Heather says she told him to go inside, close the garage and lock the door. She drove away, but only made it a few hundred yards when she saw Dan stop in front of Harper's house. She immediately turned around. By the time she stopped in front of the driveway, Dan was in the garage pointing a finger at Harper, who was standing in the elevated threshold to the laundry room. Heather says that's when Harper pointed the gun at Dan and shot him in the stomach.
At about 8:35 p.m., Laura Bachman, a certified nursing assistant, and her sister-in-law, Monica Schultz,were smoking cigarettes outside their house when they heard the gun shot. They both recall a five-second pause followed by two more shots. They heard Heather's screaming and ran toward the garage, its light casting a glow into the twilight. "There was a man laying on the ground face down, head turned to the right with one arm above his head. And there was another man standing in the doorway just staring at him," Bachman remembers.
She found some cleaning rags and began applying pressure to what would end up being the exit wound of the first and ultimately fatal shot. Later, it would be clear that Harper's first shot hit Dan in the stomach, the second in the chest and the third grazed his face. Bachman says Dan was unresponsive and blood was pooling on the floor of the garage.
When the two women had arrived, Bachman says Harper just said, "He was coming at me, he was coming at me." Then Harper went back into the house before reappearing in the threshold. He didn't have a gun in his hand. Bachman asked, "Who shot him?"
"I did," Harper responded. "He deserved it."
"Essential to a free society"
Today, most states have some version of Castle Doctrine legislation, and those that do not, like Vermont, uphold a citizen's right to self-defense through case law. There are two basic degrees of Castle Doctrine law; one that gives the homeowner the right to use justifiable force in defense of his home, and another that extends that right to use force in defense of one's self, so long as that person is in a public place or otherwise lawfully located. (These laws are often referred to as "Stand Your Ground" or "Make My Day" laws.) Montana, along with 23 other states, falls into the latter category.
State Rep. Krayton Kerns introduced the revision of Montana's Castle Doctrine law to the 2009 state legislature. The old law said that individuals could utilize deadly force only if someone entered their house in a "violent, riotous, or tumultuous manner." The 2009 bill struck that language and gave individuals license to use lethal force if they "reasonably believe" they are about to be assaulted. The law also shifted the burden of proof to the prosecution. Kerns feels the law resolves inadequacies in law enforcement's ability to respond to threats. "You're always at the mercy of law enforcement," he says. "The duty to retreat and dial 911 is your only recourse. And there may be times, maybe a lot of times, maybe most times, where that's not enough. I think it's essential to a free society."
Since 2009, Montana has seen several cases bring the issue of self defense into play, the outcomes exposing a legal margin fettered with uncertainty. On July 7, 2009, outside Roundup, Bobby Cooksey shot and killed his neighbor, Tracy Lee Beardslee, with a high-powered rifle from his yard. The men had previously disputed over property lines and land use. Beardslee was trimming grass when Cooksey shot him. Cooksey was charged with deliberate homicide. During the trial, Cooksey testified that Beardslee had threatened to kill him. "I had to protect my wife and myself," he said. A psychologist who had evaluated Cooksey diagnosed him with an anxiety disorder. The psychologist testified, "I think [Cooksey] saw a big angry man who threatened his life."
Before sentencing Cooksey to 50 years in prison, Musselshell County District Judge Randal Spaulding told Cooksey, who was 68 at the time, that when he took Beardslee's life, "you effectively took your own."
Less than a year later, 50 miles down Highway 87, another claim of self-defense produced a very different result. On Aug. 10, 2010, at a Billings Walmart, store employees Craig Schmidt and Danny Lira got into an altercation over an extended break Lira took while working at the loading dock. Reports of the incident say that Schmidt bumped into Lira's shoulder, which Lira took as an invitation to fight. Lira, who was 5'10" and 260 pounds, punched and shoved Schmidt, who was 6'2" and 141 pounds. Schmidt took out his concealed .25-caliber pistol and shot Lira in the forehead.
According to Montana law, Yellowstone County Attorney Dennis Paxinos needed to determine whether Schmidt believed his life was threatened before charging or not charging him. In his decision, Paxinos wrote, "This case is difficult because of the obvious disparity of force between punches and a firearm. But, after careful consideration of the facts, we conclude Mr. Schmidt's use of force was justified under Montana law."
"I was crazy that night"
Ed Corrigan's Oct. 9 press release offers scant glimpses into a police investigation that has been otherwise sealed from public view. Through the lens of Corrigan's decision, Harper's side of the story comes into peripheral focus. Harper, who declined to comment for this story, told police that he knew Dan "wanted to kick his ass (sic)." Corrigan also quotes Harper as saying that Dan "was charging at him (sic), like he was on a mission," and that he "was scared for his (sic) life."
In a summation of the evidence, Corrigan wrote:
"Given the relationship between Heather and Brice which was known to Dan, the prior confrontation at Fatt Boys, the manner in which Dan entered the garage, Dan's obvious anger, Brice's belief that Dan wanted to 'kick his ass,' and Dan's refusal to stop when ordered to do so, Brice's belief that Dan intended to assault him was a reasonable one. Heather herself was of the opinion that Dan would have assaulted Brice had he been allowed the opportunity to do so."
The Fredenberg family disagrees with Corrigan's decision. They feel the investigation lacked depth and transparency, and that the police treated the case as a forgone conclusion. Ron Fredenberg, Dan's father, believes charging Harper with homicide was never an option for Corrigan. He says the night Dan died, Chief of Police Roger Nasset and Sgt. Allen Bardwell, the latter a former colleague of Fredenberg, came to his house to tell him Dan had been shot to death. Fredenberg asked where the shooter was. They told him Harper was at the police station. Fredenberg asked what he would be charged with. Bardwell said he didn't know if charges would be brought. Fredenberg says Bardwell recommended a civil suit for wrongful death. Fredenberg believes the investigation was "over before it began." Roger Nasset does not recall the specifics of this conversation.
Though the entire investigation has been sealed, documents obtained by the Independent offer a partial picture of the information Corrigan used to make his decision.
At 9:45 p.m. on Sept. 22, an hour after the shooting, Kalispell Police Officer Doug Overman interviewed Heather. In a summary of the interview, which Corrigan appears to quote from in his press release, Overman outlines a conversation in which Heather says that Harper was a "very responsible person," and that she saw her husband get shot from the driver's seat of her car. Overman also writes, "Heather was extremely distraught and at times had difficulty talking to me." At one point in the interview Overman writes that, "Heather has many utterances ... of various ability to understand." The summary makes no mention of Harper threatening Dan at Fatt Boys or saying the night of Dan's death, "I'm not scared. I have a gun."
Heather claims that she was never read her Miranda rights. She says she was not contacted by the police again, but felt desperate to tell her story. "I was crazy that night," she says about the night of her interview. Four days later, Sept. 26, Heather handed in a written witness statement to the Kalispell police. She outlined what she considered warning signs that predicted the shooting, the most startling of which having to do with what was said that August night at Fatt Boys.
Heather isn't the only one confused by the investigation. The night of the shooting, Laura Bachman asked a police officer if he wanted her statement since she and Monica Shultz were the first responders. The officer handed her a piece of paper and a pen, but disappeared before she could return it. She says she left messages with the detectives assigned to the case. Three days later a detective responded and invited her to the station. "[The detective] just asked me what I saw..." she says, "and he didn't record it or write anything down." When she heard that Harper wouldn't be charged, her reaction was singular: "I was shocked."
Corrigan's press release makes no mention of Heather's second witness statement, which he says he received "a week later," after Heather was already the subject of "considerable public scrutiny." He makes no mention of the other witnesses that night that one of them had heard Brice Harper say that Dan "deserved it." Nor does it mention that Harper was moving the next day and that his house was mostly empty save for a Smith and Wesson M&P .40-caliber semi-automatic pistol. Or that Dan was shot first in the stomach, and then after a pause, in the chest and the face.
After the shooting, Heather filed a temporary order of protection against Harper. On Oct. 24, District Judge David M. Ortley heard Heather's case to make the order permanent. Harper was represented by Missoula-based attorney Quentin Rhoades. Heather represented herself.
When Heather talks about what happened she progresses through an emotional spectrum: tears turn to anger, anger to remorse, remorse becomes self-forgiveness, and forgiveness becomes momentary clarity, which again, returns her to tears. It makes conversations with her complicated, sometimes frustrating, and easier to disregard than dissect a quality that does not look good under courtroom lights, and may explain why her full statements have not been taken into consideration. At the October hearing, when Rhoades called Officer Overman to the witness stand, the issue of Heather's credibility simmered as a subtext.
Rhoades: "Did you report in that police report [Heather] mentioning Brice Harper threatening Dan Freedenberg (sic) with a firearm?"
Overman: "I—I believe the only conversation I recall is just prior to Brice entering his residence—he mentioned having a firearm."
Rhoades: "Okay. So that was on the 22nd when Brice Harper had a firearm."
Rhoades: "She talked about that."
Rhoades: "Has Mrs. Fredenberg reported to you any subsequent threats made by Brice Harper to her or her family?"
Overman: "We did speak the next night [September 23] in the lobby of the Kalispell Police Department and at that point she did share some concerns with me."
Rhoades: "And did you report—make a police report of that—of that concern?"
Overman: She didn't specficially outline any particular threats...so I did not."
Rhoades: "And on the 23rd, did she tell you about any threats Brice Harper had made toward Dan Fredenberg?"
Overman: "I—I don't have a specific recollection of that conversation."
Rhoades: "Would that have been important with respect to your investigation?"
Throughout the hearing, Heather was predictably overmatched by Harper's legal team. She called no witnesses and her cross-examination of Overman was circular and brief. At times, she would respond to questions inaudibly.
In the end, Judge Ortley declined to continue the order of protection. Harper never took the stand.
"God, judge and jury"
Ron Fredenberg lives in a small ranch-style house not far from the Flathead County Courthouse. He is tall with a graying beard and a handshake that feels consciously gentle. He talks about Dan affectionately and realistically, speaking unequivocally of Dan's love for his children and his less-than-stellar work ethic.
After the shooting, Ron asked Heather if she would submit to a polygraph test. He asked her questions about her relationship with Harper, about the night Dan died—obvious questions "that everyone was asking." He says she passed the test.
According to Ron, there are members of the Fredenberg family who have "convicted Heather 20 times over." "Ninety-five percent of the people I talk to think it was her almost as much as it was Brice," he says. "The way I see it, Dan loved her, he may have been fed up with her ... but that doesn't mean he didn't love her."
Today, Fredenberg's grief is complicated not by Harper's freedom, but by a decision left to one man, Ed Corrigan, that may have been better left to the proceedings of a trial. "The [Castle Doctrine] law isn't as bad as Corrigan is making it out to be," he says, "[but] Ed is trying to be God, the judge and the jury."
The facts are not in question. Harper killed Dan. But self-defense law can be more alchemy than physics, the precedents hiding in a gray margin. In an interview with the Independent, Corrigan seemed aware of the complications. In typical deliberate homicide cases, he said, it's his job to prove that an individual knowingly pulled the trigger. But when self-defense comes into play, he needs to prove that the individual's reason for pulling the trigger was not justified. "I'm not saying [Harper] was morally justified," he said, "... but it was in a legal sense."
"My heart is breaking"
On April 3, 2011, Heather gave birth to twins. Dan was thrilled to add a pair of boys to his family, and he suggested names inspired by the world he new best: Bentley, for the luxury car manufacturer, and Paxton, for Paxton superchargers.
Heather doesn't live in Kalispell anymore. Today, she and the twins share a duplex with Heather's mother in a different Montana town. She plans to go back to school, maybe to become a dentist. The twins are growing quickly—their eyes tiny suggestions of their late father. They've mastered walking. Now they are practicing the forward-falling leg churning that eventually becomes running.
Dan's cousins have set up a Facebook page to raise awareness of what they perceive as the injustice that has befallen their family. The page's wall is littered with commentary railing against Corrigan, against the Castle Doctrine, against Harper. There is also a Change.org petition called "Danny Fredenberg: Bring charges against the man who murdered him." The petition is bannered with a photo of Dan sitting in the driver's seat of a car, smiling coyly.
On Nov. 19, Dan's step-mother, Liz, wrote a letter. Part catharsis, part exposition, the handwritten note was given to the Independent by Liz's husband, Ron Fredenberg. It opens:
"Sitting here looking at my son's stuff. Not much here. Few pictures, lots of cards, T-shirt, pants and his slip-ons. Here is a box with his name on it. You open it and there are ashes [and] bones crushed and a number. You don't know how hard this is. My heart is breaking.
"In my purse I pack his cell phone and his picture ID card...He didn't deserve to die."
After his death, Dan's cellphone was released to Ron and Liz, not Heather. In the days following the shooting, as the dust settled, Liz found a text message in Dan's "Sent" folder.
It is unclear where Dan was when he sent his final text message to Heather. It's possible he had already found her black Tahoe. Maybe he could already see his wife in the car in front of his, make out her shape next to the man who a few minutes later would kill him. Or maybe their silhouettes were lost in the wash and glare of his own high-beams. But like so much of this story, the truth is opaque—clouded in the retellings of the people who were there.
Minutes before he was shot, Dan wrote to Heather, "...U wonder why im so fd up? I told u I had a feeling in my gut and that explains a lot. U can move away with ur number one."
Heather says she never received the message.