NASHVILLE (AP) — A white Nashville police officer charged with fatally shooting an armed black man from behind is appealing after a judge denied his request to draw the jury from outside the area.

In Davidson County Criminal Court on Monday, defense attorney David Raybin said his client, Officer Andrew Delke, shouldn’t have to contend with the publicity that the July 2018 fatal shooting of 25-year old Daniel Hambrick has received.

Judge Monte Watkins denied the motion for a different jury pool last month, saying the court can assemble a jury in Nashville that will be “fair and impartial” in considering Delke’s charges.

Watkins on Monday allowed an appeal to move forward. A trial date still hasn’t been set.

The defense has argued Delke followed his training and state law in shooting after seeing Hambrick had a gun. Prosecutors have said Delke could have sought cover and summoned help. They noted that Hambrick was shot from behind.