Aviana Bailey v. Daytona Beach Police 2016 07 26 McCroskey Deposition

More about this case can be read here: https://www.news-journalonline.com/st... (Excerpted here).

Woman paralyzed in police shootout suing ex-Daytona Beach officer

A pregnant Aviana Bailey said she didn’t hear the shots and didn’t see the muzzle flashes, but she saw the Daytona Beach police officer with his Glock leveled, confronting her boyfriend as she sat in his car.

Then she felt her life change as the .40-caliber bullet from the officer’s gun slammed into her chest.

“I just felt the impact of it,” Bailey said. “My whole body went numb. I just knew something was wrong and I just see him with his gun pointed at us.”

The young mother-to-be was left paralyzed from the chest down after the shootout with police at Daytona Beach International Airport in April 2012, according to a federal lawsuit filed in Orlando against former Daytona Beach Police Officer Joshua Mersereau. The State Attorney’s Office has cleared Mersereau in the shooting.

The 25-year-old Bailey can breathe on her own and use her arms but not her legs, her attorney said. This is the first time that Bailey has publicly discussed the shooting, which put her in a wheelchair and her baby’s father in prison.

Doctors decided not to remove the bullet which damaged her spine, so she still carries the slug — along with the heartache of not being able to care for her child, Craig, who will turn 2 in September.

“She’s confined to a wheelchair and from the waist down doesn’t work,” said her attorney John Phillips. “Because of that, taking care of a 2-year-old is virtually impossible, so she needs help from her mom and her dad to even take care of her kid. They do a lot of the day-to-day child care. It’s as bad as it gets when a mom can’t take care of her own child.”

“We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make a split-second decision between action and inaction in circumstances where inaction could prove fatal,” the motion quotes the appeals court.
A federal judge dismissed Chitwood and the department from the lawsuit but Phillips — the same attorney who recently won a $2.6 million verdict against Volusia County for a Kansas woman run over by a Beach Patrol truck — said the lawsuit will be amended soon to add the city of Daytona Beach as a defendant.

Mersereau opened fire after he saw Bailey’s boyfriend, Marvin C. Jones, point and fire a revolver at him, according to an investigation from the Florida Department of Law Enforcement. Mersereau fired his gun 23 times, according to the FDLE. Bailey’s lawsuit says Mersereau fired between 23 to 37 bullets. The two other officers — Christopher Pearsall and Michael Dill — fired five times, the FDLE said. Pearsall and Dill are not named in the lawsuit.

The investigation also found that Jones tried to fire his gun six times but it malfunctioned and fired only twice. Jones was hit by five shots from police but survived. No police officers were hit. Jones pleaded no contest last year to attempted second-degree murder, aggravated assault on a law enforcement officer with a firearm, resisting arrest with violence and attempting to flee and elude with lights and siren. He was sentenced to 30 years in prison.

The State Attorney’s Office cleared Mersereau, Pearsall and Dill after the investigation by the FDLE. Mersereau and the other officers would later be honored for their actions that day. And still later, Mersereau would be fired in October 2013 for pummeling a fellow officer in a locker room fight.

The issue of an innocent mother getting shot should not be mixed up with Jones’ actions that day, Phillips said.

“What happened with Marvin Jones is separate and distinct,” Phillips said. “There is some debate we can have on how that actually went down. At no point was Aviana more than a girl who was pregnant going to see the father of the child, not knowing anything was going on and winds up with a bullet in her spine and winds up paralyzed.”

The suit claims Mersereau fired in an unsafe and unreasonable manner “in the direction of the innocent Aviana Bailey.” Mersereau fired “when it was apparent that no forcible felony was being committed or life threatening situation existed.” And he fired while tripping over a curb knowing that “could cause errant bullets to stray from the intended target,” the complaint states.

More in link.

The federal counts were dismissed via qualified immunity and settled under state law claims which are capped by sovereign immunity in Florida. We will upload more depositions in this case.