Christopher Deedy’s third trial on charges of killing Kollin Elderts in a Waikiki McDonald’s restaurant is on hold.

Lawyers for the U.S. State Department special agent on Tuesday filed their appeal of a state judge’s refusal to dismiss the manslaughter case. The appeal to the Hawaii Intermediate Court of Appeals suspends any action on the case.

Circuit Judge Karen Ahn, who presided over Deedy’s first two trials and is expected to preside over a possible third trial, last month granted Deedy’s request to suspend the case while the appeal is pending.

If the appeals courts rule in Deedy’s favor, there will be no third trial.

Deedy fatally shot 23-year-old Elderts in the Kuhio Avenue McDonald’s restaurant early on the morning of Nov. 5, 2011, after a verbal confrontation escalated into a physical altercation.

The 31-year-old, Washington, D.C.-based agent was in Honolulu to provide security for the multinational Asia-Pacific Economic Cooperation conference. He had been on Oahu barely 12 hours and had been out drinking with friends before the fatal shooting.

Deedy testified in both trials that he shot Elderts to protect himself and others from assault at the hands of Elderts and the Kailua man’s friend, Shane Medeiros. He said he identified himself as a law enforcement officer before drawing his personal handgun and that he was not drunk.

The prosecution said Deedy was drunk and that he did not identify himself as a law enforcement officer before firing his weapon.

Deedy’s first trial in 2013 ended with the jurors unable to agree on a verdict. Their only choices were guilty of murder and not guilty. The jurors did not have the option to consider manslaughter. Neither side asked for the option and Ahn ruled that it wasn’t warranted.

In the second trial, following some key Hawaii Supreme Court rulings pertaining to two of Ahn’s previous trials, the judge reversed herself and gave the new jury the option to consider manslaughter and other lesser crimes.

The jurors last year found Deedy not guilty of murder but could not agree on whether he was guilty of manslaughter.

Ahn declared a mistrial and ordered a new trial.

Deedy asked Ahn to dismiss the case based on state legal precedent that prevents the government from continually taking a defendant to trial until it gets a guilty verdict and on Hawaii and U.S. constitutional double-jeopardy prohibitions.

This past April, Ahn denied Deedy’s requests to dismiss the case.