NASHVILLE — Sen. Todd Gardenhire, R-Chattanooga, has joined a Nashville newspaper in suing for documents related to the March 27 shooting at a private elementary school in Nashville that left six dead, including three 9-year-old children.
The suit, filed Wednesday, is the fourth against Metro Nashville government seeking material and writings by Audrey Hale, the 28-year-old former student at The Covenant School who killed three children and three adults with semi-automatic weapons before being killed by responding police officers.
Hale was known to have mental health issues, and Gardenhire and other lawmakers have said an understanding of those issues will help them going into an August special session of the legislature to address school shootings.
The lawsuit by The Tennessean newspaper and Gardenhire was filed by Robb S. Harvey with the Holland & Knight law firm. It cites provisions in the Tennessee Public Records Act as grounds for obtaining the records.
The lawsuit says the government is justifying its withholding of the documents by citing legal provisions protecting information about ongoing investigations.
But the lawsuit contends the Nashville government and police argument against releasing the records is moot because the perpetrator is dead.
It cites a 1986 Tennessee Supreme Court decision that found legal protections against release of pending investigative material did not apply in a case in which the perpetrators had been killed in a police shoot-out.
"The Metro Police Department acknowledges that it believes Hale acted alone. Petitioners submit that there is no pending criminal investigation," the lawsuit states. "There is no criminal suspect to investigate."
Even if the protections against release of such documents apply, they can be waived by the police, the lawsuit argues.
On multiple occasions, the suit says, Nashville police have released videos of crimes and requested the assistance of media entities to identify suspects. Nashville police released body camera footage relating to The Covenant School shooting.
"Since the murders at The Covenant School, law enforcement officials have made comments to media outlets in briefings and press releases concerning information contained in the records plaintiffs/petitioners have requested," the suit argues. "These petitioners submit that these comments have confirmed that there is not a pending criminal investigation related to the shootings."
In addition to The Tennessean and Gardenhire, Tennessean reporter Rachel Wegner is listed as a plaintiff.
The lawsuit says Gardenhire sought the documents for research in "writing new laws regarding school safety."
On April 24, Nashville police denied the request on the grounds "these items remain relevant to an open criminal investigation."
Gardenhire, chairman of the Senate Judiciary Committee, told the Chattanooga Times Free Press by phone Wednesday he got nothing from Metro Nashville in response to records requests.
"I just want the things that would be pertinent to help me as chairman of Judiciary decide if anything can be done to keep something like this from happening in the future by looking at Hale's psychological makeup, the things Hale wrote," Gardenhire said.
"We're asking for her autopsy, not the children's," he said. "We don't want to intrude on the privacy and the feelings of the parents who lost children and who were close to the families that lost children. But we want to find out what made this person do what they did, and if there's something we can do by law in Tennessee — be it mental health or some kind of services — then we need to find that out."
Metro Nashville Police initially publicly released some information and records about the shooting. The department has refused to release others, including Hale's writings.
Early on, Police Chief John Drake said Hale left behind what was described as a "manifesto," suicide letter and other writings. The department has not used that word again, however, instead referring to "collective writings."
Metro Nashville lawyers and police have since rebuffed efforts by different groups and news organizations to obtain more details. Earlier this month, the Tennessee Firearms Association and former Hamilton County Sheriff Jim Hammond filed suit seeking the investigative file on the Covenant shooting.
Prior to that, The Star, the parent company of conservative news and opinion website The Tennessee Star, filed suit. Also suing under the state's public records law is the National Police Association, a conservative group.
Attorneys representing many of the families, meanwhile, have filed their own suit to block release of the documents.
(READ MORE: Sen. Bo Watson to keep 'open mind' for special session on Tennessee gun laws)
Metro Nashville Police Department officials responded to the Tennessee Firearms Association and Hammond lawsuit in a Davidson County Chancery Court filing Wednesday.
"The MNPD investigation into the matter is still an active, ongoing criminal investigation and an open matter," Nashville Assistant Police Chief Mike Hagar stated in a declaration. "Based on my 34 years of law enforcement, I believe that harmful and irreversible consequences could result from disclosing investigate files prematurely, including in this case."
Hagar called it "essential that police investigators be able to gather materials freely and broadly, using their judgment, without fear that materials they gather will prematurely be released to the public and cause prejudice to the effectiveness of the investigation."
But he said he doesn't believe releasing a redacted version of Hale's writings will impede the investigation.
Metro Nashville Police Lt. Brent Gibson said in the court filing the department is examining a host of records including social media posts from the past two years as well as internet, phone and bank records. Police are also examining medical records including records of psychiatric treatment, Gibson said.
Also still under investigation are Hale's actions in the months preceding the attack. Many of the documents must be subpoenaed, Gibson wrote.
"It takes time to get the records," Gibson said. "Investigators must still work to gather and analyze evidence in the case and to determine if related crimes were committed, are being planned, or whether other people were involved."
He said based on his 25 years in law enforcement, he believes "harmful and irreversible consequences" could ensue from disclosing investigative files prematurely.
"While we believe at this time that the assailant acted alone in this case, we do not know for sure," he said. "And we need to investigate the matter thoroughly, as we do in all homicides, to rule out any co-conspirators or additional crimes related to this matter."
All four Tennessee Public Records Act lawsuits come as state legislators prepare to convene Aug. 21 in a special session called by Gov. Bill Lee on school safety.
Lee, a Republican, wants lawmakers to pass an "order of protection" law that would allow a judge to order the removal of firearms from people deemed to be a danger to themselves or others. But his fellow Republicans are wary of such a process.
In other states, similar measures have been called red flag laws since they allow courts to raise a warning flag before a potential crime is actually committed.
But the governor, whose wife Maria Lee is a former educator and friend of Covenant's head of school (killed in the attack), said his plan differs from red flag laws. The governor argues unlike a red flag law, his proposal allows gun owners to be legally represented in proceedings about the removal of their firearms.
Gardenhire earlier this year blocked an effort by Democrats to pass a red flag bill similar to Lee's proposal.
The Covenant shooting spurred mass protests at the state Capitol this year, which grew larger and drew national attention after two Black freshmen lawmakers, who led an impromptu floor protest, were expelled by Republican lawmakers. A white lawmaker who supported their protest was not expelled, leading to accusations of racism.
The ousted lawmakers were later re-appointed and are now running for re-election.
Tennessee House Republicans are also calling for the Metro Nashville Police Department to release the Covenant shooter's writings and medical records ahead of the special session. The request was signed by 66 of the House's 75 Republicans.
Contact Andy Sher at email@example.com or 615-285-9480.