The U.S. Supreme Court has refused to hear a case over whether a federal agent should face a third trial over a fatal 2011 shooting in a Waikiki McDonald’s restaurant.

The refusal means prosecutors can’t pursue a manslaughter charge against U.S. State Department Special Agent Christopher Deedy.

“The impact of this is that the manslaughter charge is now dismissed permanently and that Mr. Deedy cannot be tried again on it,” Deedy’s defense attorney Thomas Otake said in an email today.

The case isn’t over, said Brooks Baehr, a spokesman for the Honolulu prosecuting attorney’s office.

A statement from the office called the decision “regrettable” but said the state will continue to pursue a trial for first-degree assault.

Prosecutors pursing a third trial took their quest to the Supreme Court after the 9th U.S. Circuit Court of Appeals rejected a request for a wider panel of judges to hear the case. A panel ruled that if prosecutors want to try Deedy a third time, it can only be for assault, not manslaughter.

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

The issue of whether he can face a third trial accusing him of assault is pending, and Deedy’s lawyers are challenging that in a separate appeal, Otake said.

Deedy’s attorneys have argued that a third trial would violate the double jeopardy clause of the U.S. Constitution. The Hawaii Supreme Court ruled that a retrial wouldn’t violate his double jeopardy rights and Deedy then turned to the federal court system to prevent the state from trying him a third time.

Deedy had been in Honolulu providing security for the 2011 Asia-Pacific Economic Cooperation summit. After bar-hopping with friends on his first night in Waikiki, Deedy is accused of fatally shooting Kollin Elderts during an altercation in a McDonald’s.

Deedy testified at two trials that he was protecting others from the aggressive Elderts. Prosecutors have said Deedy was drunk, inexperienced and fueled by warnings from a fellow agent that Hawaii locals are hostile toward federal workers and outsiders.

“The circumstances in which Christopher Deedy killed Kollin Elderts are similar to recent killings on the mainland that have sparked worldwide outrage,” Acting Prosecuting Attorney Dwight Nadamoto said in a statement. “Deedy was a law enforcement officer who needlessly escalated an encounter with an unarmed citizen resulting in the unjustified use of lethal force.”