The federal government has not yet decided whether it will defend U.S. special agent Christopher Deedy in a wrongful death lawsuit filed by the family of 23-year-old Kailua resident Kollin Elderts.

Similar to Deedy’s pending murder trial, that determination revolves around a singular question that will no doubt be integral in both cases: Was Deedy acting in his capacity as a federal law enforcement officer when he shot and killed Elderts around 3 a.m. in a Waikiki McDonald’s?

“The only way out of this civil case for the federal government is if they say he wasn’t acting in the scope of his employment,” said Michael Green, the attorney representing Elderts’ family in the federal civil case.

“The problem they have, which is an interesting problem to have, is that if the federal government doesn’t take the case then that contradicts his defense in the (criminal) case.”

Deedy’s criminal defense attorney, Brook Hart, is trying to get the case dismissed against his client, saying Deedy is immune from prosecution because he was acting in self defense and as a federal law enforcement officer when he shot Elderts.

Deedy, who lives in Virginia, was in Honolulu in November as part of a State Department security detail for the Asia-Pacific Economic Cooperation summit. He was out socializing with friends when he encountered Elderts.

The State Department is still investigating the incident and as a result could not comment, an agency official said Friday. That official also said there have been no changes in Deedy’s status at the agency.

After the shooting he was placed on temporary administrative leave. He is currently not performing law enforcement duties.

To Green, it doesn’t matter what the feds say about their culpability in the civil case, he’s still planning to include them in the suit against Deedy.

Green is currently waiting on the response to a $10 million wrongful death and personal injury claim he filed with the State Department in December.

It’s unclear how much of a role the federal government’s decision to defend Deedy in the civil case will really play in the lawsuit. That suit, initially filed in circuit court, has moved to the federal court.

Deedy’s attorney in the lawsuit, Robert Richards, said the federal magistrate has allowed for a delay in civil proceedings until the end of the criminal case.

Even if the federal government made a decision in that time not to defend Deedy in the lawsuit, Richards said it shouldn’t have an impact on the defense in the criminal case. The opposite would be true as well, he said, because the feds’ decision would be considered an administrative action.

“They can still contest it,” Richards said, “because in both cases it’s an opinion of the federal government that hasn’t been subject to judicial review.”

Currently, Deedy’s defense costs in the civil case are being covered by his renters insurance policy. At first the insurance firm, Allstate Indemnity Co., attempted to separate itself from the case, but a federal judge ruled that the firm was responsible for Deedy’s defense.

Meanwhile, in the criminal case against Deedy, attorneys representing the Honolulu Star-Advertiser and other media outlets have asked Circuit Court Judge Karen Ahn to reconsider her decision to seal certain court records, including the surveillance video from the McDonald’s where Deedy killed Elderts.

In their argument, attorneys Jeff Portnoy and Elijah Yip say Ahn’s reasoning for barring the public from accessing the records has been undermined by recent proceedings in the case.

Ahn said she didn’t want the surveillance video, along with other evidence, including cell phone video from a bystander, to be made public because she felt it would lead to widespread community speculation. This could then influence potential jurors.

Portnoy and Yip counter this argument in a motion submitted to the court last week, citing recent court filings from both the prosecution and defense that give conflicting accounts of who was the “first aggressor” the night Deedy shot Elderts.

“The State and Defendant are publicly airing out their interpretations of the evidence in this case, including the video recordings that were sealed. The State has characterized Defendant as the ‘first aggressor,’ alluding to evidence that supposedly demonstrates that Defendant kicked Elderts in the chest/stomach area and threw his slipper at Elderts, striking Elderts in the head. Defendant has responded with references to the surveillance camera footage that allegedly rebuts the factual assertions and characterizations made by the state. This battle of interpretations is being waged in public view, and yet, the public is barred from viewing the information the attorneys are characterizing in this case (which have not been deemed admissible evidence by the Court), even though the information is part of the judicial record.”

By Ahn only allowing “piecemeal access” to the court records, Portnoy and Yip argue that “confusion and speculation” by the public will only get worse.

Hart, who argued along with Portnoy and Yip, said Friday he has not yet decided whether he will weigh in on the motion for reconsideration.

DISCUSSION: Share your thoughts on the latest developments in the Deedy cases, both criminal and civil.**

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