U.S. State Department special agent Christopher Deedy will have to stand trial a third time for the 2011 fatal shooting of Kollin Elderts in a Waikiki McDonald’s restaurant, a state judge ruled Friday.

Circuit Judge Karen Ahn, who presided over Deedy’s two previous trials for murder, ruled that Deedy will be tried for manslaughter and using a firearm to commit the crime.

Ahn set no date for the retrial.

Deedy’s attorney, Thomas Otake, said he planned to appeal to the Intermediate Court of Appeals and present the same four motions to dismiss that Ahn rejected on Friday.

Otake said Deedy was informed of Ahn’s ruling, but declined to describe Deedy’s reaction.

“We are obviously disappointed in Judge Ahn’s ruling,” Otake said. “However, we look forward to an immediate appeal. We know the appellate courts will follow the law, at which point in time we are confident that this case will never be tried again.”

Deedy’s first trial ended with a hung jury and his second trial ended after another jury acquitted him of murder but was hung on manslaughter.

Ahn’s ruling came after Deedy’s lawyers argued on Monday that a third trial would violate legal prohibitions against allowing the government to continually take a defendant to trial until it gets a conviction and Deedy’s constitutional rights against double jeopardy.

Deedy fatally shot 23-year-old Kollin Elderts in the Kuhio Avenue McDonald’s restaurant in the early morning hours of Nov. 5, 2011 after a verbal and confrontation turned physical.

The State Department special agent assigned to the nation’s capitol 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 shooting.

The state says Deedy was drunk, started the confrontation and did not identify himself as a law enforcement officer before shooting Elderts.

Deedy says he was not drunk and that he shot Elderts to protect himself and others from being assaulted by Elderts and Elderts’ friend Shane Medeiros. Deedy testified in both trials that he showed Elderts his badge and identified himself as a law enforcement officer.

Elderts, of Kailua, died from a gunshot wound to the chest.

Deedy’s first murder trial in the summer of 2013 ended with the jurors deadlocked on the murder charge. Ahn found that there was no evidence to support manslaughter so did not allow the jurors to consider that lesser charge.

Ahn reversed herself in the retrial last summer, allowing the jurors to consider manslaughter as well as other lesser charges including assault. The jurors returned a not guilty verdict on the murder charge but were deadlocked on manslaughter.

In both trials the state told the juries that Deedy intentionally killed Elderts and is therefore guilty of murder.

The manslaughter charge is for killing someone recklessly.

On Monday, Deputy City Prosecutor Janice Futa, who represented the state in Deedy’s first two trials, argued in favor of a third trial.

“Justice demands for Kollin Elderts and his family that we pursue this case,” she said.

Deedy’s lawyer Thomas Otake said the state has had enough chances.

“This is not about justice. This about trying to convict Agent Deedy of something,” he said.