GRAND RAPIDS, Mich. (WOOD) — A Kent County judge has ruled that the Patrick Lyoya murder case will head to trial.

On Friday morning, Kent County Circuit Court Judge Christina Elmore ruled that a jury will decide whether Christopher Schurr, the former Grand Rapids police officer who shot and killed Lyoya last April, should be convicted of second-degree murder.

The defense said it plans to ask the Michigan Court of Appeals to review Friday’s ruling. Both sides said that could lead to a delay in the trial, which is set to begin in March.

Among the defense’s arguments in requesting that the charge be thrown out: That Michigan common law dating back to 1846 gives police officers and anybody else the right to use deadly force against any fleeing felon.

“If you commit a felony and you try to escape, in 1846, as it is today, the arresting person can use deadly force,” defense attorney Matthew Borgula said.

“The classic example is Jesse James, notorious bank robber,” he told the judge.

In the 1870s, he explained later, Jesse James was shot and killed by one of his sidekicks for a $10,000 reward, leading to a murder charge.

“Had Bob Ford, the guy that shot Jesse James, simply said he was fleeing, he probably wouldn’t have been charged with murder,” he said.

Lyoya was unarmed when Schurr pulled him over in a traffic stop. But Schurr’s attorney argued Lyoya became a fleeing felon when he tried to run and again when he wrestled for the officer’s Taser.

Schurr, who was on top of Lyoya trying to hold him down, shot him in the back of the head. That led to a charge of second-degree murder and to Schurr’s firing. It has also led to protests.

Schurr’s attorney has also argued self-defense and that Schurr was allowed to use the force necessary to match the force used by Lyoya.

“A lot of people, and I’m not saying this is the right law or the wrong law, believe that the only time an officer should use deadly force is when it’s reasonable under the circumstances to use deadly force, but we’re still in 1846,” Borgula said.

But Kent County Prosecutor Chris Becker argued it’s not that simple. The shooting, he said, was not justified.

“It (the law) has been developed over time and that’s our position; it’s not like we’re stuck in 1846,” Becker said. “There’s been case law and Supreme Court cases that the judge cited and that we cited that have developed that law over time.”

Jesse James, he said, is not relevant.

He said the law requires anybody making an arrest, a citizen or a police officer, to use reasonable force.

“If police are held to a different standard, a police officer says, ‘Hey come with me,’ and you pull away, all of a sudden a police officer can kill you? That’s stunning in its application,” Becker said.

The judge questioned the defense’s argument.

“That would require, in effect, two different definitions of murder, one for police officers and one for the rest of us, and such a scheme could raise a significant constitutional question,” she said.

The judge ruled the district judge didn’t abuse his discretion when he ordered Schurr to stand trial in October.

“There is probable cause that there is no justification or excuse” for the shooting, she said.

The judge noted that probable cause is a lower standard than “beyond a reasonable doubt,” which is the standard a jury is held to during a trial.

Schurr did not make an appearance in the courtroom Friday morning.