State Department Special Agent Christopher Deedy was not "the first aggressor" as the prosecution contends in the slaying of a 23-year-old Kailua resident last November in Waikiki, Deedy’s attorney argues in a recent filing.

In a 10-page memorandum filed Tuesday in Circuit Court, attorney Brook Hart contends that a surveillance tape that has been sealed by Circuit Judge Karen Ahn shows that Kollin Elderts, not Deedy, was "the aggressor." Hart argues that Deedy, an agent since 2009, kicked Elderts only when the agent believed he was being threatened.

Deedy, 28, is scheduled to stand trial in Ahn’s court on Sept. 10 on charges of second-degree murder and use of a firearm.

Deedy was in Honolulu in November as a federal law enforcement officer on an official U.S. State Department assignment with the Asia-Pacific Economic Cooperation conference. He had the power of arrest and the right to carry a firearm when he shot and killed Elderts Nov. 5 at a Waikiki McDonald’s restaurant at 2237 Kuhio Ave., Hart has said.

In his memorandum this week, Hart was responding to a 15-page memorandum filed by city Deputy Prosecutor Janice Futa on June 8 opposing Hart’s request for more materials. In her filing, Futa maintained that Deedy was "the first aggressor" in the fight that occurred at 2:30 a.m. inside the fast-food restaurant.

Hart in his memorandum said that surveillance videotape from McDonald’s shows that Elderts was sitting at a table when "SA (Special Agent) Deedy calmly and professionally showed Elderts SA Deedy’s federal badge and credentials.

"Only after SA Deedy had identified himself as law enforcement did Elderts stand up, and, while reaching to his waistband, angrily advance toward SA Deedy from around the table barrier."

Hart’s document said Deedy took several steps backward and Elderts went around two people and "menacingly aggressed toward Special Agent Deedy again, this time entering Deedy’s personal space."

Hart maintains that by doing so Elderts violated federal law, which Hart said "prohibits assaulting, resisting or impeding a federal officer."

At that point, Hart added, Deedy deployed "a defensive frontal kick to Elderts’ shin area," losing his right slipper in the process.

Hart maintains that the videotape, which Ahn sealed at the request of city prosecutors, shows Deedy without his right slipper, contrary to prosecution witness statements that Deedy threw the slipper at Elderts.

Futa said in her June 8 statement that "independent witnesses stated that Deedy acted as the first aggressor, escalating a verbal argument into a physical confrontation when he (Deedy) thrust kicked Elderts in the chest/stomach area and threw his slippers at Elderts, striking Elderts in the head."

Earlier this month, Ahn removed from her calendar a July 13 hearing on a motion by Hart to dismiss a murder charge against the State Department special agent.

Hart said he couldn’t say why Ahn took that action and surmised that it had something to do with future motions he may be contemplating or the possibility of moving Deedy’s case to federal court.

Hart said Thursday he does not view Ahn’s action as a setback.

Earlier this month, Ahn granted a prosecution request to seal the restaurant’s surveillance videos.

Hart and the Honolulu Star-Advertiser, its television news partner Hawaii News Now and online news site Hawaii Reporter opposed the sealing.

Ahn ruled that the videos, if released, would essentially go viral on the Internet and provide images that could jeopardize a fair trial for the prosecution, defense or both.

Deedy has returned to his home in Virginia to await the Honolulu criminal trial after posting $250,000 bond.

The State Department has said Deedy was in Hawaii as a member of its Bureau of Diplomatic Security to provide security for leaders attending the APEC conference.

He had gone to the Waikiki McDonald’s restaurant with two friends when the confrontation occurred.