“He didn’t have to do this,” Montgomery County prosecutor Robert Hill told jurors during opening statements, urging them to study surveillance video from inside the Red Line train that captured the shooting: “He goes zero to 60 instantaneously.”
The incident erupted aboard the southbound moving train on Dec. 15, 2020, six months after a Minneapolis police officer killed George Floyd and sparked national attention on the use of force by law enforcement. Prosecutors have asserted the agent escalated to deadly force in an act that was not proportionate to the threat.
Valdivia has maintained from the start he was acting in self-defense. The shooting victim, who has a long record of assaults and aggressive panhandling aboard the sprawling Washington subway system, was not armed. He was struck in his torso and arm and spent five days in the hospital.
Valdivia’s trial began Tuesday. In his opening statements, an attorney for the agent, Robert Bonsib, told jurors that the video, while incomplete, supports his client, who on that morning was wearing an overcoat, office attire and armed with a concealed handgun in a small holster under his waistband.
“Maryland law permits anybody — any ordinary guy on his way to work — to defend himself against the threat of imminent bodily harm,” Bonsib said.
The Metro car video, played for jurors, does not have audio. A man is seen approaching the agent, speaking to him, walking away, and turning back toward him. The men then square off, standing just inches from each other and clearly exchanging words. The footage is not totally clear, as the two are at the opposite end of the car from the camera. Their hands are partially obscured.
And without audio, Bonsib told jurors, they could not hear the threats Valdivia heard or the commands he issued for the man to back off. The agent was outweighed by 80 pounds, Bonsib added, believed he was only seconds away from being punched or tackled and having his gun taken from him and used against him.
“There is nothing that keeps that gun from being pulled out of the holster,” Bonsib said. “That is a very important consideration in this case.”
In presenting their case, prosecutors have adopted a stripped-down strategy.
They indicated they will not call as witnesses the shooting victim or another occupant in the train car who witnessed the shooting. Instead, they have leaned into the video, playing it for jurors eight minutes into the trial and telling jurors it underscores how quickly Valdivia acted on an unarmed man.
“In order to get out of this loud, verbal confrontation, the defendant resorts to deadly force,” Hill said.
Bonsib castigated the approach, telling the jury he would bring in Metro system police officers to testify about the shooting victim’s “reputation for having a propensity for violence,” and asserting that prosecutors were scared to put him on the witness stand.
Bonsib also told jurors he will call the witness, who described the events preceding the shooting as an attack on the agent. The jury will have to weigh whether that description was a sensible interpretation of the up-close confrontation or if it exaggerated verbal jawing with no punches thrown.
The video opens with Valdivia, sitting in a sparse train car with his back to the far wall and hunched over, as if he is reading his phone. His face is obscured by a covid mask and black cap. At the Grosvenor stop, two men get on. One takes a seat several rows away. The other, wearing white sneakers, dark pants, a purple shirt and carrying a coat, takes a seat across the aisle from Valdivia, leans over toward him and gives him what appears to be a playful fist-bump to the left forearm.
“Can you give me some money?” he asked, according to Hill, the prosecutor.
“I have nothing to give you,” Valdivia responded, Hill said.
The man stood up and began walking away.
“F— your money,” he yelled out, Hill said.
“Watch your mouth,” Valdivia responded.
The man wheeled around and, as Valdivia rose, walked back to the agent. He threw his coat onto a seat, prompting Valdivia to immediately lift his overcoat and reach to his rear right hip. The man’s left arm moved up and down and his right hand held a horizontal rail to keep his balance on the moving, swaying car. He spread his legs slightly, right foot back and left foot just inches from Valdivia’s feet.
The agent had to grab a horizontal bar as well, doing so with his left hand across his body. The stance of the man in front of him could be seen either of two ways: an effort to maintain his balance as part of an in-your-face verbal argument or a “fighting stance,” as Bonsib as said, in preparation for an attack.
With words clearly being exchanged, the standoff lasts for 33 seconds. Valdivia then pulls out his gun and fires, causing the man to bend over, stumble back and take a seat. Hill and Bonsib offered dueling narrations to the jury. The prosecutor said Valdivia could have tamped things down.
“He doesn’t tell this man that he is an FBI agent: ‘I’m a law enforcement officer. Stop,’” Hill said. “He doesn’t show his badge. He doesn’t tell him in any way to cut it out. He doesn’t try to de-escalate. He goes from yelling to shooting.”
The defense attorney countered that left unheard on the video was the confrontational bearing of the other man — “He came in hot,” Bonsib said. “He was uttering F-bombs.” — and his client’s response, telling him to back off.
After the shooting, the third passenger on the train stands up. Valdivia told him to call 911, according to Hill. For two minutes, the three continued aboard the moving train until it pulled into the Medical Center station. The wounded man sat in a seat. Valdivia stood several feet away. The third passenger stood farther away, his phone to his ear.
As the train pulls to a stop, Valdivia turns around to get his bag and the man’s coat. He encourages him to get up, pointing to the doors leading to platform. The man does so, and — moving slowly, hunched over — follows the agent out of the train.
As it turned out, the man was critically wounded. An emergency room physician told jurors that a bullet fragment was found near the man’s spine, and she surgically repaired wounds to his colon, spleen and pancreas.
The trial is expected to continue through the week.