Honolulu prosecutors are appealing a judge’s ruling saying a federal agent Christopher Deedy can’t be tried a third time for fatally shooting an Oahu man in a Waikiki fast-food restaurant.

City Prosecuting Attorney Keith Kaneshiro filed the appeal Wednesday to the 9th U.S. Circuit Court of Appeals.

A federal judge in Honolulu ruled this month that prosecutors may not proceed with a retrial against Deedy, a U.S. State Department special agent who was in Honolulu for the November 2011 Asia Pacific Economic Cooperation summit when he shot Kollin Elderts during an early-morning altercation in a McDonald’s.

A 2013 murder trial ended in a hung jury. A second jury in 2014 acquitted him of murder but deadlocked on manslaughter.

Deedy’s defense attorneys argued a third trial on manslaughter would violate the double jeopardy clause of the constitution.