Fox News host Megyn Kelly sharply critiqued a Montana self-defense law that has been cited by the local prosecutor as the reason that Brice Harper will not face charges after fatally shooting Dan Fredenberg in Harper's garage on September 22. Fredenberg, who was unarmed, entered the garage to confront Harper who was having an affair with his wife.

During Thursday's segment on American Live, Kelly stated “it looks like that guy who did the shooting, who was having the affair is going to get away with it” and said that Harper “is getting off. Why? Because of the 'stand your ground' law or the 'castle doctrine' in Montana.” Kelly also expressed the belief that the law effectively makes the punishment for unlawfully entering someone's property “the death penalty.”

Montana's “castle doctrine” law allows an individual to use deadly force while in their home if the individual has a reasonable apprehension of assault. The deadly force requirement was created in 2009 by HB 228, a bill that expanded the circumstances under which deadly force could be used in self-defense and also loosened rules on the carrying of concealed weapons in public.

While the bill was under consideration, National Rifle Association lobbyist Brian Judy called it “our most important bill of the session.” The proposed legislation, however, was opposed by some members of law enforcement who cited public safety concerns. 

Even as numerous states have expanded self-defense laws in recent years (often at the behest of the NRA), Montana's “castle doctrine” law stands out for the extremely low requirements that an individual must satisfy before using deadly force. Under Montana law, an individual may use deadly force on someone who unlawfully enters his or her property if that individual “reasonably believes that the force is necessary to prevent an assault.”

Like many other states, assault is broadly defined in Montana. Some circumstances under which an assault is committed include “negligently caus[ing] bodily injury to another with a weapon” and “mak[ing] physical contact of an insulting or provoking nature.”

45-5-201. Assault. (1) A person commits the offense of assault if the person:

(a) purposely or knowingly causes bodily injury to another;   

(b) negligently causes bodily injury to another with a weapon;

(c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual; or

(d) purposely or knowingly causes reasonable apprehension of bodily injury in another.

Other states require a higher degree of criminal culpability before deadly force is justified. In Pennsylvania, which modified its “castle doctrine” law in 2011, deadly force may be employed to protect from “death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat.”

Florida, home of the controversial “Kill At Will” law implicated in the shooting death of 17-year-old Trayvon Martin, requires that the person using deadly force have “a reasonable fear of imminent peril of death or great bodily harm.”

In both Florida and Pennsylvania, an individual claiming self-defense is afforded a presumption of reasonableness if they acted in defense of their home.

New York does not grant an individual using deadly force the presumption of reasonableness, but does allow deadly force to be used to prevent death, kidnapping, forcible rape, a forcible criminal sexual act, robbery, attempted burglary, burglary, attempted arson, and arson. While individuals in public in New York have a duty to retreat before using deadly force if they can safely do so, no such duty exists for self-defense inside the home.