A U.S. State Department special agent who shot and killed a Kailua man while in Honolulu for the Asia-Pacific Economic Cooperation summit in November might not stand trial after all.

Last week, the attorney for special agent Christopher Deedy filed paperwork in state court asking Judge Karen Ahn to decide whether Deedy is immune from prosecution under federal law.

Ahn had asked attorneys in the case if it was more appropriate to answer this question at trial, saying it was closely related to the allegations. She also wanted to know if attorneys thought a jury should decide on the matter if it was deferred.

In the memorandum, Honolulu attorney Brook Hart argued that the case against his client should be dismissed based on the Supremacy Clause in the U.S. Constitution. Hart believes this provision protects his client from prosecution because he was acting in his official capacity as a law enforcement officer when he killed 23-year-old Kollin Elderts.

Deedy was in Hawaii as part of a diplomatic security detail for APEC. He was out socializing with friends when he got into a late-night altercation with Elderts at a McDonald’s on Kuhio Avenue that ended with him shooting Elderts.

Who was the aggressor in that fight has been a major point of contention between the prosecution and defense.

Hart said in his latest legal brief that the Supremacy Clause is different from a claim of self defense or justifiable use of force that is sometimes raised as a defense during trial. He said the reason it’s in place is to protect an officer from having to “run the gauntlet of standing trial” and therefore should be ruled upon by Ahn before a jury is selected.

He also noted that it’s within a judge’s job description to make a ruling on a supremacy clause motion because it can act as “a substantial safeguard against frivolous or vindictive charges against federal officers.”

“Issues that are constitutional in nature, such as the application of the Supremacy Clause immunity defense for a federal agent, are, by their very nature, questions of law within a judge’s domain,” Hart said.

The Supremacy Clause motion was filed in May. Ahn redacted large swaths of the document and sealed its exhibits, including surveillance video from the Kuhio McDonald’s and other images that depict the confrontation between Deedy and Elderts.

This resulted in a sidebar legal battle that involved local media outlets, such as the Honolulu Star-Advertiser and its television affiliate Hawaii News Now.

The Honolulu prosecutor’s office has until Sept. 20 to respond to Hart’s recent legal brief. A spokesperson for the office said that work is currently underway, and refused to comment further.

Hart’s filing is the first significant one in the case since a federal judge denied transferring it to federal court.

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