GRAND RAPIDS, Mich. (WOOD) — A Kent County judge could make a major decision Friday in the Patrick Lyoya murder case.

Friday morning, a Kent County Circuit Court judge may decide whether to throw out the murder case against Christopher Schurr, the former Grand Rapids police officer who shot and killed Patrick Lyoya last April.

Judge Christina Elmore is expected to hear arguments from Schurr’s attorneys and Kent County Prosecutor Chris Becker. Schurr is not expected to make an appearance.

In a 45-page motion filed last month, the defense asked the judge to quash the case, saying a lower court judge was wrong to send it to trial. Meanwhile, Becker later wrote that a jury should decide whether Schurr should be convicted of second-degree murder.

Legal experts like Lewis Langham, a professor emeritus at WMU-Cooley Law School, don’t expect the judge to toss the case.

“It would be extremely rare under the vast majority of circumstances,” Langham said.

“It’s not common for it to happen, but it does happen,” said Sarissa Montague, a criminal trial attorney with Levine & Levine in Kalamazoo. “I’ve had it happen in cases. We all have.”

Both the prosecution and the defense claim the other side isn’t interpreting Michigan law correctly, even choosing to “cherry-pick” quotes from prior cases to prove their arguments.

“This is a battle that’s going on right now between the prosecution and the defense that the judge will ultimately make a decision on whether or not this is going to go forward,” Langham said.

“It’s competing interests,” Montague added. “It’s competing interpretations of the law. That’s why we have judges. It’s up to the judges to decide which standard applies and which should go forward.”

The defense says the district court was wrong to suggest a police officer can only use deadly force if they fear for their life or great bodily harm.

“Under Michigan common law, Officer Schurr had the right to use deadly force to effect the arrest. Indeed, it was his duty to arrest Lyoya,” attorneys Matthew Borgula and Mark Dodge wrote. “The district court erred when it took this right away from Officer Schurr and held that Officer Schurr could only use deadly force in response to force that put him in fear for his life or in fear of great bodily harm.”

Instead, they argue police officers can use deadly force to make an arrest when they’re met with force or resistance.

“Michigan common law permits active duty police officers to use deadly force when confronted with force by a person resisting a lawful arrest not only when they are in fear of harm or death,” they wrote.

The defense attorneys also wrote that police are treated differently than private citizens, who need to show self-defense to justify using deadly force.

“The district court makes officers indistinguishable from the average citizen who has simply harmed another person,” they wrote. “Officer Schurr was not acting as a civilian on the morning of April 4th … unlike a civilian, Officer Schurr had different rights and duties as a sworn law enforcement officer of the State of Michigan.”

In a response filed last month, Becker argued that’s not true, citing other Michigan cases directing police officers to be held by the self-defense principal.

“Analyzing an officer’s use of force under principles of self-defense, as the Whitty Court directs, practically makes sense,” Becker wrote.

“Hypothetically, the standard advanced by the defense would permit an officer to use deadly force against any individual who uses even the slightest amount of force in resisting arrest, such as pushing an officer, pulling one’s arm away while being handcuffed, or throwing a small object (such as a driver’s license or their car keys) at the officer,” Becker added. “That is not, and has never been, the law justifying the use of deadly force.”

The prosecutor also wrote that the evidence shows Lyoya was not actively escaping when Schurr shot him, but the jury should decide whether that’s the case and if self-defense was justified.

“Whether Lyoya’s actions constituted ‘flight’ and whether it was necessary to use deadly force to prevent his escape are appropriate questions of fact for the jury, and, thus, the district court did not abuse its discretion in binding the second-degree murder charge over to this Court on this basis,” Becker explained.

Montague said defense attorneys have the right to use their “statutory and constitutional rights to the fullest extent they can.”

“It’s not game-playing,” Montague said. “There are statutes in place. There’s constitutional rights that are in place. It is our job as defense attorneys to make sure those rights, no matter where they come from, are upheld and followed.”

Langham said at the end of the day, the case is about one issue.

“The whole issue really boils down to was Officer Christopher Schurr legally justified in shooting Patrick Lyoya based upon all the evidence,” Langham said.

Although the judge will hear from both sides on Friday, she won’t necessarily make a decision. Montague and Langham said the judge could issue a ruling on the spot or take some time to review the case and make a decision later.

The hearing is set to get underway at 8:45 a.m.