Davidson County Chancellor I’Ashea L. Myles granted permission Wednesday to parents of Covenant School children who were present during the March 27 shooting to intervene in a public records lawsuit that seeks access to the shooter’s manifesto and other records collected by police in their investigation.

The parents said in their motion to intervene that they don’t want the writings ever released.

“At this stage, the Parents’ claims regarding the application of the Tennessee Public Records Act and the documents and materials in the possession of the (Metro Nashville Police Department) hinge on the interpretation of the Victim’s Bill of Rights and Article I, § 35 of the Tennessee Constitution,” she said in the order, referring to both Title 40, Chapter 38 in Tennessee Code and the rights of crime victims in the constitution.

She said there is “little law, statutory or otherwise, on what the rights of those victims should be when it comes to (preventing) the public access to the records and/or open investigative file.”

Myles cited a dissent by then-Tennessee Supreme Court Justice Gary Wade in The Tennessean v. Metropolitan Government of Nashville and Davidson County in 2015 in which he contended that the application of victim rights should have been adjudicated to determine whether they provide an exemption to public records law not just during the prosecution but after the case is closed. (That case involved an ongoing prosecution related to a sexual assault.)

Victim rights in Tennessee law

The Tennessee Constitution states that a victim has the “(t)he right to be free from intimidation, harassment and abuse throughout the criminal justice system.” The statutory right entitles the victim of a crime to “(b)e treated with dignity and compassion.”

“This Court agrees with Justice Wade that this open question of law warrants consideration,” Myles wrote.

The parents have said that should the documents and material requested be released, “the minor children would sustain a palpable and distinct injury, which would be caused by the release of certain file contents,” the judge said in her order. The lawyer for the Covenant parents said in a hearing earlier that he would like to bring in expert witnesses to testify on why releasing the shooter’s writings would harm the children.

Part of judge’s reasoning that the victims “at this juncture” should be allowed to intervene is that police have said in declarations filed with the court that they have “an ongoing and active criminal investigation which may lead to prosecution,” the judge said in the order.

In a declaration filed a week ago with the court,  police lieutenant Brent Gibson said: “While we believe at this time that the assailant acted alone in this case, we do not know for sure. 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.”

The public records petitions claim that there is no underlying criminal proceeding that allows the application of Rule 16 of the Supreme Court’s Rules of Criminal Procedure, the so-called investigative exemption. The shooter was killed at the scene by police and police have stated the shooter acted alone, they say.

The declaration may have been the first time that police have mentioned publicly “co-conspirators,” although the declaration was not clear on whether police are actively pursuing leads related to a particular person who may have helped the shooter.

The judge also ruled that the parents may pursue the claims on behalf of their children anonymously through Jane and John Doe pleadings.

House passed Marsy’s Law earlier this year

Victim rights have been an increasing topic in the state legislature, particularly constitutional rights. This year, the House of Representatives passed a resolution to amend the constitution to include a right of standing to assert those rights.

The so-called “Marsy’s Law” constitutional amendment must be passed by the Senate and then both houses in the next General Assembly before being put on a statewide ballot for a vote.