A state judge has refused U.S. State Department special agent Christopher Deedy’s request to have a state murder charge against him dismissed.

Deedy, 30, is facing a second trial for murder in the Nov. 5, 2011 shooting death of 23-year-old Kollin Elderts after the first trial last year ended with a hung jury.

Jury selection for the retrial started last week.

Deedy had asked Circuit Judge Karen Ahn to dismiss the charge against him based on his claim that he shot Elderts in a Waikiki McDonald’s restaurant while performing his duties as a law enforcement officer under federal law and that federal law trumps state law. Deedy testified in the first trial that he shot Elderts in defense of himself and others.

There was no hearing on Deedy’s request because he agreed to let Ahn decide the issue from the evidence that was presented in last year’s trial.

Ahn said Monday afternoon that she can not dismiss the charge because the government has raised questions of fact that should be left for a jury to decide, such as whether or not Deedy was indeed performing his duties as a federal law enforcement officer at the time of the shooting.