The U.S. Supreme Court has denied a request by Honolulu prosecutors to determine whether or not a federal agent should stand trial a third time for the shooting death of a man in a Waikiki McDonald’s in 2011.

The decision by the nation’s highest court means prosecutors can’t refile a manslaughter charge against Christopher Deedy, a federal agent who, after a night of bar-hopping, shot and killed Kollin Elderts during an altercation.

The Honolulu Prosecuting Attorney’s office said in a statement Thursday that it will continue to pursue a first-degree assault charge and a separate felony charge involving use of a firearm.

Updated: In a statement Thursday night, Thomas Otake, Deedy’s defense attorney, called the appeal “baseless and unethical.”

“Further prosecution of this case is not only a waste of taxpayer dollars, it is malicious and will someday expose these prosecutors to civil liability if they are not careful,” Otake said in an emailed statement.

Deedy’s attorneys have previously argued that to put him on trial again would violate his double jeopardy rights.

Prosecutors have already tried Deedy twice on murder charges. In 2011, the trial ended with a hung jury, and in 2014, a jury acquitted him of murder but was hung up again on manslaughter charges.

A previous ruling by a federal court also meant that if Deedy is tried again, he could only be tried on assault charges. Deedy is currently appealing that ruling to the U.S. Court of Appeals for the 9th Circuit.

In a statement Thursday, acting Honolulu Prosecutor Dwight Nadamoto called Deedy’s use of force in 2011 “unjustified.” Nadamoto likened it to recent police killings that have led to global calls for greater police accountability.