A Nashville judge will soon decide whether writings left by the Covenant School assailant will be released to the public. The two-day hearing in Davidson County Chancery Court wrapped Wednesday afternoon.
Judge I’Ashea Myles said that her ruling will shape public records law in the state.
“It will be case precedent,” Myles said. “You’re asking me to really construe these laws that have never been tested.”
The hearings come nearly a year after petitioners sued for the release of records from the March 2023 shooting that claimed the lives of three children and three staff members.
The players
Nashville Police found journals in the assailant’s car and home following the shooting.
Soon after, a joint lawsuit seeking the release of the journals was filed by the Tennessee Firearms Association; state Sen. Todd Gardenhire, R-Chattanooga; a member of the National Police Association; a former Hamilton County Sheriff; and two news outlets: the Tennessee Star and The Tennessean newspaper.
The Metro Nashville Police Department and the Covenant School have opposed the release of the documents.
Open records, open investigation
Under the Public Records Act, police do not have to release records of an active investigation into “pending or contemplated criminal action.”
Attorneys disagreed on whether the exemption applies in this case, since the assailant died at the scene.
“They don’t have a crime, and they don’t have a criminal,” The Tennessean’s attorney, Rick Hollow, said.
Metro Associate Law Director Lora Fox argued that MNPD’s investigation into the Covenant School shooting is ongoing.
“Is there anyone else who bears legal responsibility for the horrific actions at that school that day?” she said. “That’s really been the purpose of this whole investigation, is to track down whether there are any coconspirators.”
Judge Myles asked Fox if police are still currently investigating other people outside of the deceased assailant.
“Yes,” Fox said.
MNPD estimates closing its investigation in July, according to filings read in court.
What inspires a copycat
Parents of the Covenant School have said they don’t want the documents released out of fear they could inspire another mass shooting. The Covenant School, Covenant Presbyterian Church and individual parents asked the court last year for the ability to be heard in this weeks’ hearing.
Erin Kenny — who lost her son, William, during the shooting — had her declaration read to the court.
“This mass murderer does not get to speak from the grave while our three children, along with the three adult victims, are silenced in this life. May this evil die with the shooter,” she wrote. “The pathway to obtain notoriety from murdering children must be removed. Starting here with this shooter, who I will never, ever name.”
Douglas Pierce, who represented Clata Brewer of the National Police Association, argued that a future shooter could already be inspired by “simply the fact that there is the shooting, not necessarily that there is a writing about the shooting.”
Pierce put forth an expert who said that the danger of a copycat shooting passes after a short time frame.
“That is illogical and incorrect,” said Covenant School attorney Peter Klatt. “We know that the effects of the Columbine shooting are still present with young people today. There’s an unfortunate segment of our society that still holds that shooting with reverence.”
Who is a victim?
Tennessee courts have a precedent for withholding public records if it protects a victim’s privacy. In a sexual assault case that took place on Vanderbilt University’s campus, the court sided with the victim in keeping certain records of the case from The Tennessean, which had sued for their release.
The Tennessean’s attorney, Rick Hollow, argued that the children who lived through the Covenant School shooting do not count as victims under state law.
“I don’t want to take away from the harm that these children experienced during the horrific act,” Hollow said. “The Victims’ Rights Amendment statutes … do not provide a basis for the type of intervention which is being sought in this case. It doesn’t exist, Your Honor, it doesn’t exist. We may want it to exist, but that’s a matter of public policy.”
Attorney Eric Osborne, who represents Covenant families, argued that none of the documents should be released.
Judge Myles asked Osborne whether the release of the assailant’s writings would meet the law’s threshold of protecting victims from intimidation, harassment or abuse.
“So, if hypothetically, the shooter wrote about ‘I went to McDonald’s today’ in a vacuum, it would seem to us as adults that that might not be harmful,” Osborne said. “But anything coming out … the person that did this to these children gets to have their voice heard, and that is there forever to haunt them.”
Ownership
While the journals are currently in MNPD’s possession, the parents of the Covenant School officially own the writings. The assailant’s parents, Ronald and Norma Hale, began the process of transferring ownership last year.
“The Hales desire that no further harm come to any of the children who survived the events that took place on March 27th, 2023,” the filing for transfer read. “The Hales desire that no further harm come to any children or adults anywhere in the world because of the writings.”
The petitioners argued that copyright is not an exemption to public records law.
“The whole purpose behind copyright is to allow the creator of a work to realize the profits from the efforts of their creation. That’s the whole underlying concept of copyright,” Hollow said. “You can’t copyright the facts; you can copyright how the facts are talked about. I couldn’t copyright the fact that the Titanic sank,” but, he added, he could copyright a story about the ship sinking.
School security
The petitioners’ attorneys argued that they are not seeking documents related to the school’s security, like maps or other safety plans made by the school.
However, MNPD said that the journals include details of the school’s security, information on how the assailant obtained weapons, and the names of people related to MNPD’s ongoing investigation.
“There were voluminous other writings,” Fox said. “They were just as full of people’s names and activities and information about weapons, and those materials are … very important for the police.”
MNPD and Metro Law diverged from the arguments of the Covenant School, Church and parents on when and what documents should be released when the investigation closes.
Attorneys for Covenant assert that none of the assailant’s writings should be released. Metro has said that redacted versions of the journal could be released when MNPD has concluded the investigation.
Three pages of the journal found in the assailant’s car were leaked to a conservative YouTuber in August. The investigation into the leak closed in December with no concrete answers.
The judge admonished the leak and gave a warning to anyone considering a future leak.
“The leaked documents, again, were against the rule of law. If anyone hearing the sound of my voice, listening or watching intends on releasing anything else that they have, this court will not take too kindly to that,” Myles said.
Myles did not give an indication on when she may release a final ruling in the case.
Correction: This story originally quoted the wrong attorney representing the three groups of Covenant interveners. Eric Osborne, who represents the families of the Covenant School, argued that the release would re-traumatize students.
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