Credit: File photo

Before an FBI agent shot a man on a Metro train in Bethesda in December, the man approached the agent, asked him for money and later used expletives toward the agent, a prosecutor said.

Eduardo Valdivia, 37, of Gaithersburg, shot 29-year-old Steven Slaughter on a Red Line train early on Dec. 15 as it was heading toward the Medical Center station, according to the State’s Attorney’s Office. Slaughter was taken to a hospital and treated for his injuries.

Prosecutors contend that Valdivia was not justified in shooting Slaughter, who was not armed and did not physically harm Valdivia.

But Valdivia’s defense attorney said on Tuesday that the agent had to use force because Slaughter was a threat to the FBI agent due to the possibility of a fight.

Montgomery County Circuit Court Judge Joan Ryon released Valdivia on personal recognizance following a hearing on Tuesday.

Assistant State’s Attorney Robert Hill said in court on Tuesday that Valdivia boarded the train at Shady Grove and was headed to work that morning. Around 6:35 a.m., Slaughter boarded at the Grosvenor-Strathmore station, he said.

Slaughter asked Valdivia for money and the agent replied with a “fist pump,” Hill said. Slaughter then used expletives toward Valdivia, Hill said.

State’s Attorney John McCarthy later told reporters that Valdivia told Slaughter to stop using expletives. Slaughter then turned and approached the agent again.

“It was during that second time, they came together … basically, within arm’s length of each other,” he said.

Montgomery County State’s Attorney John McCarthy addresses reporters on Tuesday.

McCarthy said Slaughter was not armed and the men did not fight. At some point, Valdivia took out his service revolver and shot Slaughter, he said.

Valdivia’s attorney, Robert Bonsib, told Ryon during Tuesday’s hearing that Valdivia warned Slaughter to “back up or I’ll shoot” and it was not until Slaughter “made movements” that the agent fired his weapon.

Bonsib told reporters after the hearing that as an agent, Valdivia is used to working in “dangerous and undercover capacities.”

“He can see body language as it changes. He can feel the danger as it approaches. And the law does not require that you wait to be struck before you take action. Had this resulted in a hands-on fight and a struggle over Agent Valdivia’s gun, only God knows what could have happened,” he said.

Bonsib noted that prosecutors said in court that Valdivia and Slaughter were within two or three feet of each other at one point on the train.

“That’s arm’s length. That’s fighting length. You don’t wait under those circumstances for those things to happen,” he said.

McCarthy declined to comment when asked about the contention by Bonsib that the situation would have escalated had Valdivia not fired his weapon.

“I’m not gonna speculate as to what the evidence is ultimately gonna prove to be,” McCarthy said. “I did hear what Mr. Bonsib said earlier and I’ve known Mr. Bonsib for a long time. I respect him as an attorney. So, I’m not gonna get into that. We’ll let it be resolved in open court.”

McCarthy added that in general, the state’s attorney’s office wouldn’t charge a law enforcement officer if the shooting were justified.

Valdivia appeared briefly by video feed from jail during Tuesday’s hearing. He said little, but answered in the affirmative when asked if he understood the charges against him.

Ryon noted on Tuesday that Valdivia doesn’t have a prior criminal record and determined that he would not be a flight risk to the community. She ordered that he be released on personal recognizance with the conditions that he give up all weapons, surrender his passport and not have any contact with Slaughter.

Valdivia is charged with one count each of second-degree attempted murder, use of a firearm in the commission of a crime of violence and reckless endangerment. A scheduling hearing is set for June 11.

Defense makes issue of Slaughter’s criminal past

In a statement shared with Bethesda Beat, Bonsib noted that Slaughter has a lengthy criminal record dating back more than 10 years in Maryland and D.C.

Bonsib referred to Slaughter’s criminal history during Tuesday’s hearing, and said it indicates that Slaughter could have physically harmed Valdivia on the train had the agent not used force.

However, when Ryon asked Bonsib whether his client knew about Slaughter’s criminal history before Dec. 15, Bonsib replied that Valdivia had not.

Bonsib said Slaughter’s criminal past is still relevant because “what Agent Valdivia saw [on the Metro] in his eyes and in his body language is exactly consistent with what many other innocent victims had to suffer in other circumstances.”

“If Mr. Slaughter didn’t have that kind of a history, it would be a different situation. But the agent is trained. What he saw was corroborated by the history of this individual,” he said.

FBI says shooting is ‘subject to internal review’

Valdivia joined the FBI in 2011, and last year was promoted to the position of supervisory special agent at FBI headquarters, Bonsib said.

Valdivia oversees domestic terrorism investigations that target racially motivated violent extremists and anti-government violent extremists, Bonsib said.

The FBI, in a statement to Bethesda Beat on Tuesday, wrote that the matter was “subject to internal review” and that the agency is cooperating with the State’s Attorney’s Office.

The FBI did not answer a question about Valdivia’s current status with the agency. However, Bonsib told reporters on Tuesday that he thinks Valdivia has been suspended without pay.

Dan Schere can be reached at