by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
The quotation comes from a recently published opinion by North Carolina Court of Appeals Judge John M. Tyson. The judge’s opinion in North Carolina v. Ayers clears up some uncertainties in North Carolina’s law of self-defense, which makes it important. And it’s always a nice surprise to see an application of natural rights jurisprudence these days. But for me, the most noteworthy thing about the opinion is what it reveals about Judge Tyson’s skill as a narrator.
With a series of evocative passages worthy of Raymond Chandler, Judge Tyson sets the scene in the first section of the opinion:
[T]he weather was cold and wet, as there had been a forecast of snow, but a persistent drizzle of rain fell instead. The roadway was dark as the sun had set and there were very few street lights.
Defendant [Charles Ward Ayers] testified that when the truck [“a Chevrolet Silverado pickup”] pulled behind him onto Highway 98, two or three cars were traveling in front of him. At times the line of cars would slow down from 45 mph to below 30 mph. Defendant thought the drivers were cautious because of the weather, darkness and the potential for ice. When the cars in front of Defendant slowed down, Defendant slowed down, but the pickup truck behind him “would end up being pretty snug up on [his] rear bumper.” Defendant testified, “At sometimes he was, you know, maybe 50 feet behind me, but at sometimes he was like less than 5 feet.” Near the intersection of Highway 98 and Route 50, the only car still traveling in front of Defendant turned off.
The truck continued to follow Defendant for several miles, at times approaching within 5 feet of the rear of his vehicle. Before the intersection of Highway 98 and Route 50, the pickup truck tried to pass, but did not have enough room. After a second failed attempt, the truck began surging to within 10 to 15 inches of Defendant’s back bumper. Defendant eventually reached a downhill, 4-mile stretch of road with no oncoming traffic and ample room for the truck to pass. Defendant testified, “He rode my bumper all the way down that hill and all the way across the causeway and the lake, past the recycling center, and he could have passed me at any moment during that almost three-miles worth of driving.”
As they started going uphill, the truck pulled alongside Defendant as if to pass. Defendant braked, but the truck slowed too.
Then, in a brilliant rhetorical maneuver, Tyson uses few deftly chosen excerpts from the record to let Ayers finish the story in his own words:
I realized he wasn’t passing me. He was pacing me. …
[H]e stepped on the gas, but he also pulled the wheel over and started to come in towards me…. And he’s basically, you know — his rear tire — if I’m sitting here and this is my driver’s side door, I could have reached out and touched the rear tire of his truck. That’s how close he was to me. …
I had reached down and I had grabbed the revolver out of the door pocket …. And I said, well, you know, if he forces me to a stop and he gets out of his vehicle, I’m going to make it clear to him before he approaches me that it’s not the right thing to do. …
So I had the pistol against my hip. I had put the window down. Now he starts pushing me off the road, and I’m like, “Oh, God, I’m going to roll” because the wheel started to shake. …
And the car was really starting — you know, the tires were digging into the mud on that side and my steering wheel was really starting to pull, and I knew that I was going to lose control of my car in the next second or two. I basically had no more time left to make a decision. I didn’t want to hurt him…. I said, “Well you know what? I’ve got a tool in my hand. I don’t have to hurt the guy. I can just disable the vehicle”.
So what I did was, again, the window was all the way down, and so I literally went and fired directly into the tire at a downward angle, but straight through the sidewall, okay.
Q. How many times did you fire your –
A. Just one.
It’s a dramatic story, especially the way Judge Tyson tells it, but its legal significance arises out of what happened after the drama was over. The driver of the Silverado, Timothy Parker, pulled over onto the median unharmed and made a note of Ayers’ license plate number as Ayers headed home. Ayers was charged with discharging a firearm into an occupied and operating vehicle and misdemeanor injury to personal property, and, after hearing the evidence, a jury found him guilty on both counts.
On appeal, Ayers claimed the trial court’s instructions to the jury were deficient in two ways. It failed to tell the jury that he did have a right to use non-deadly force in self-defense, and it also failed to tell the jury that he did not have a duty to retreat.
Judge Tyson agrees. Regarding the first of Ayers’ claims, he says:
Defendant was not required to show he “intended to kill” Parker to warrant a self-defense instruction being given to te jury. Defendant needed only to have shown the intent to “strike the blow” and shoot at Parker’s vehicle. …
Regarding the second, he says:
Without the jury being instructed that Defendant had no duty to retreat from a place where he lawfully had a right to be, the jury could have determined, as the prosecutor argued in closing, that Defendant was under a legal obligation to cower and retreat. This notion would have required Defendant to have (1) further slowed down while being “paced,” (2) pulled off the road, or (3) ceased maintaining his lawful course of travel to avoid Parker’s use of his truck as a deadly weapon to force him off the road.
And, in the Conclusion, he adds:
Self-preservation is the most basic and fundamental natural right any individual possesses. … The first law of nature is that of self-defense. The law of this State and elsewhere recognizes this primary impulse and inherent right. [Citations and quotation marks omitted.]
Despite the fact that our entire system of law and government is founded on the theory of natural rights under natural law, one seldom comes upon an explicit reference to either of those concepts in modern judicial opinions. Which is why Judge Tyson’s opinion in North Carolina v. Ayers is such a welcome surprise!