The Honolulu Prosecuting Attorney’s Office on Friday said it will ask a federal court to reconsider its decision that a federal agent who shot and killed a local man during a fight at a Waikiki restaurant can’t stand trial for manslaughter in what would be a third proceeding to prosecute the agent.

The announcement came after a three-judge panel of the 9th U.S. Circuit Court of Appeals on Thursday ruled the U.S. Constitution’s double jeopardy clause prevented the state from prosecuting Christopher Deedy for manslaughter in the shooting death of Kollin Elderts in November 2011.

A State Department special agent, Deedy was in Honolulu for an international summit when he shot Elderts at a Waikiki McDonald’s during a scuffle. The first trial in 2013 resulted in a hung jury. A second jury in 2014 acquitted Deedy of murder but deadlocked on manslaughter.

Before Honolulu Prosecuting Attorney Keith Kaneshiro could bring Deedy to trial a third time, Deedy went to the Hawaii Supreme Court, which rejected his request to prevent another trial.

Deedy then went to federal court, claiming the state’s manslaughter charge violated his constitutional protection against double jeopardy. A U.S. District Court judge agreed with Deedy, and the state appealed to the 9th Circuit.

Although the appellate court on Thursday said Deedy couldn’t be tried for manslaughter, it said the state could try Deedy for assault, which carries a sentence of up to 10 years in prison.

On Friday, Kaneshiro’s office announced it would request a rehearing before the entire 9th Circuit, known as a hearing en banc, in which 11 judges preside.

“The Hawai‘i Supreme Court ruled that further prosecution of Deedy does not offend the constitution of either the United States or Hawai‘i,” Acting Prosecuting Attorney Dwight Nadamoto said in a statement. “The panel’s decision limits the Office’s ability to hold Deedy responsible to the degree the law permits for killing Kollin Elderts. Accordingly, the Office has a moral and ethical responsibility to request full panel review to correct the panel’s decision.”

Deedy’s lawyer Thomas Otake did not return a call for comment on Friday.