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UPDATE (May 15, 2023): The judge ruled the state can proceed with the death penalty.

INDIANAPOLIS– The man accused of murdering IMPD Officer Breann Leath is fighting to have the death penalty removed as an option in the case.

The Marion County Prosecutor’s Office filed a response to that motion on Thursday.

In April 2020, IMPD officers responded to a domestic violence call when shots were fired through a closed apartment door.

That gunfire claimed the life of Officer Breann Leath.

Because officer Leath was killed working as a law enforcement officer, prosecutors are seeking the death penalty against the accused killer Elliahs Dorsey.

According to the affidavit filed against Dorsey nearly 3 years ago, the suspect confessed to officers he thought someone was coming to get him and he didn’t look to see who it was.

Dorsey believes the death penalty should be eliminated as an option at his trial because he didn’t know Leath was a police officer when he fired the shots.

In their response to the defense’s motion to dismiss, prosecutors claim that’s a defense the jury will need to consider and asked the judge to allow the death penalty case to proceed.

“The law is the law and it’s been well settled on this issue it’s left to the jury.  They will decide if the defendant had knowledge she was a law enforcement officer,” said attorney Mario Massillamany.

Attorney Mario Massillamany isn’t connected to the case, but he agrees with the prosecution’s argument.

Dorsey also claims the death penalty is unconstitutional and should be disallowed.  That claim also appears to be a long shot.

“This has already been litigated in front of the United States Supreme Court and the Indiana Supreme Court and both have found the death penalty is valid in the state of Indiana,” said Massillamany.

The is no timeline for the judge to decide on the death penalty motion.  Right now, the suspect is set for jury trial in September.