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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."