Judge takes under advisement whether to release Covenant shooter's writings

NASHVILLE, Tenn. (WTVF) — A judge will take under advisement what records from The Covenant School shooter will become public.

Following this, the judge will file an order of what questions she needs to be answered by the parties in the case of this public records lawsuit. Five parties want the records of the shooter open. Those affiliated with Covenant don't want any of the writings public, and in a new twist, have declared the writings from the shooter now belong to them and are copywritten documents.

"I hate that we got here from the incident on March 27," Myles said to the court in her closing. "Before I am a chancellor, I am a human and a mom. My heart grieves for the parents and children and the victims who fell prey to this. I want you all to know I am sorry. We don't get to write our life stories. Sometimes, life happens to us and we have to get through the tragic events that we did not cause. My deepest condolences and heartfelt. . . I am sorry. My role is to interpret the law. I have to take what I feel out of it. I have to interpret the laws written by the legislature. And so you all have asked me to lift a heavy burden and determine whether or not they come out to the petitions and if (Covenant) can prevent them from coming out."

This lawsuit emerged as Metro didn't immediately release the shooter's documents in April 2023. At that point, police hadn't released any writings and denied open records requests — including one from us here at NewsChannel 5.

Metro Legal said it denied those records because it was part of an open investigation. It then decided not to release anything because of the litigation over the records.

No one has seen the shooter's documents and intellectual property except the judge and Metro police. None of the lawyers for either side have seen any of the records, except the three leaked pages back in November.

Metro Legal confirmed Wednesday that the writings were mostly ramblings.

The rundown of the case

There are a lot of attorneys and people involved in this case. At least eight attorneys spoke before the court.

Judge I'Ashea L. Myles is presiding.

There have been three separate groups of people arguing about what are public records and what are not.

Here is who wants the records to be public.

1. The Tennessean newspapers
2. Star Digital Media - The Tennessee Star
3. Sen. Todd Gardenhire, R-Chattanooga
4. National Police Association
5. Tennessee Firearms Association

Metro Legal is representing the Metro Nashville Police Department, which has created a case file and collected the documents as evidence. That case file should close in July. Right now, it's still open.
The Covenant School, the Covenant families and the Covenant Presbyterian Church said the shooter's documents — either narrative or visual — shouldn't go public because it threatens security and traumatizes families affected by the mass shooting. They said they don't oppose the case file becoming public, which was clarified in court on Wednesday.

Everyone argued on Tuesday except the Covenant families.

The writings are copywritten, depending on who you ask

On April 11, the documents that belong to the shooter — and any other media — were signed over in the court to The Covenant Children's Trust. That group decided they would never let that intellectual property become public.

"There's never been a chance of the shooter's rights from coming out," attorney Eric Osborne said. He represents 103 Covenant student families at the school. At the time of the shooting, there were 112 families. He also represents the three families of staff members who died that day.

"There was a comment made yesterday that copyright is only for monetary gain," Osborne said. "That is simply not true. We will never register this copyright. Our position is they never be released."

Osborne further argued that copyright begins at the point of creation.

However, those wanting the documents said that legal copyright couldn't be identified because no one has seen the documents to authenticate the shooter's writings. They also said that the copyright wasn't intact because it wasn't a registered copyright. Petitioners said that copyright and the Tennessee Public Records Act don't intersect. They argued it was a separate issue that didn't deal with the situation at hand.

Lawyers and the judge admitted copyright law wasn't their specialty.

Metro and the Covenant don't agree on release

Metro Legal revealed that it and The Covenant School families don't exactly agree on what should be released.

Those speaking for the Metro Nashville Police Department said that some of the shooter's writings could wind up released as long as they don't pinpoint school safety threats to The Covenant School. Students went back to the original Burton Hills location this week.

"The police should redact what reflects school security and the government's position is that the remainder be released," Metro attorney Lora Fox said. "I think you asked if you get into the nitty gritty of more specific information to someone who is planning a crime, they should be redacted."

Covenant families, the school and church said that wasn't their position at all.

They said they didn't want any of the shooter's intellectual to go anywhere public. Metro has copies of the documents and the originals, which are government records at this time. There's also a copy of the shooter's documents with the FBI. Copies are subject to TPRA, according to the petitioners.

These documents have lost a sense of privacy because they are part of the investigation, the judge said.

"The police had to go and get a judge to say, 'Could we have this?' There's been a leak made, and everything that the police have become a part of the public record. A judge signed off on it. The police had to get those through the judicial process. Under the case law we have now, they are a public record," Fox said.

School safety and the TPRA

Those wanting the documents and those with Covenant did not agree on what's an exception for school safety.

The TPRA has hundreds of exemptions, and school safety is one of them.

"Information, records, and plans that are related to school security, the district-wide school safety plans or the building-level school safety plans shall not be open to public inspection," the exception of state law reads.

This argument of what is and what isn't public safety has consumed hours of both days of hearings. Covenant attorneys said everything in the shooter's intellectual property was a threat to school safety. However, petitioners said that only documents generated by the school to the Tennessee Department of Safety and Homeland Security were exempt.

"There are questions going on locally and nationally about this," said attorney Russell Nobile, who represents the Tennessee Firearm Association. "When you talk about school safety, it needs to apply to safety — not everything that could possibly be considered as safety. It's not everything is covered by that."

A new law signed into effect July 2023 has made all schools — public or private — to provide safety plans to the state. This law was a reaction to The Covenant School mass shooting.

Perspective from parents

The chancery courtroom is very small inside the Davidson County Courthouse. However, some families sat among the benches.

This hearing didn't feature live testimony.

However, Osborne nodded toward two parents, who filed declarations with the court. Exactly 25 families filed their fears of those writings becoming public. In court, Osborne featured a declaration from Erin Kinney, who lost her son, William. He was 9-years-old. Kinney wrote about the impact in her eight-page declaration. She detailed that those who were not affected by the mass shooting had nothing to gain from reading the documents.

She also touched on conspiracy theorists and the thought that the parents and The Covenant School were urging to cover up something by wishing the writings would never come before the public.

"If there were any hint of a cover-up or conspiracy resulting in our children’s murders, would not the parents of the dead children cry out the loudest for the release of these documents?" Kinney wrote. "And yet, we collectively desire the complete opposite because we know there is nothing to be discovered."

Kinney's son became honored by a bill inspired by what happened at The Covenant School that day. His class thought the fire alarm was triggering the normal protocol to react. However, that alarm was set off by the smoke of the gunfire, not an actual fire. The new law to clarify alarm sounds at schools will go into effect in July.

"There will always be a first few victims in these attacks. It is a statistical certainty. I never imagined the evil that would walk through the school on March 27," Kinney wrote. "I never imagined my child wouldn’t come home that day. That I would stare at an empty bed every night and every morning reaching and longing for my child. No one can imagine it until it happens to you."

The other parent, Nick Hansen, had three children who survived the shooting that day.

He wrote that his children became scared of any loud noises — from construction to a toy falling by accident on the floor. They struggle going into open places. They are scared at night until they fall asleep.

Our kids have lost their foundation of safety and security in this world, as a place that they are supposed to be safe, school, was violently breached and their loved ones were murdered," Hansen wrote. "We have to work every day, with the support of family, friends, therapists, and the community, to re-establish their sense of safety in this world. They have lost a large part of their childhood innocence, trust, and feeling that they are safe. It is important to us that all of these documents remain private for the healing process of our children. They have been through enough and more than any child should have to go through. They should not have to be subject to further details surrounding the planning of this event and retraumatize themselves, or have others retraumatize them, by having access to harmful writings of a disturbed and evil individual."