A 1-year-old boy has been in the hospital’s intensive care since earlier this month after being shot by Houston police. The baby’s mother Daisha Smalls was pumping gas on March 3 when she saw police cars and sirens she says at a press conference according to USA Today. Smalls said she was sitting inside the car when a man approached and told her to get out of the car while her son, Legend, was in the backseat.

“I wouldn’t give him my car because I let him know that I have a child in my car and that I would not leave my car without my son,” Smalls said, describing the man then sat on her lap and tried to take the car. The police then shot into her car, killing the suspect and injuring Legend when a bullet went into his head according to Small’s attorney Ben Crump said.

“I was just scared for my son’s life,” Smalls said and later said. “Didn’t deserve to be shot, especially not by the police.”

Doctors have since had to remove part of Legend’s skull because of brain swelling. Although they removed the bullet, there are still fragments in his brain, Crump said.

“He’s had multiple seizures — over 10 seizures — he’s still fighting for his life,” he said.

Crump’s co-counsel, Antonio Romanucci says they are still investigating but that “you can anticipate a lawsuit being filed shortly” because of a violation of the Houston police’s mission statement. Earlier this month, Houston Police Department Executive Assistant Chief Troy Finner said that Smalls wasn’t in the car the night when the man allegedly hijacked it. The police seen the man had a gun, officers told the man, who was 30 and the suspect in two armed robberies, to drop the weapon, according to Finner.

The suspect refused, and an officer fired several shots at him, Finner said on March 4. The man, whose name hasn’t been released, died at the scene.  Finner says he thinks the officer didn’t know that Legend was in the car.

“Fearing for the mother’s safety, one of our officers discharged his duty weapon, fatally striking the suspect,” Houston Police Chief Art Acevedo said in a statement posted to Twitter earlier this week. “Sadly, baby Legend was also struck. Officers at the scene immediately rendered first aid to Legend.”

“We are hoping and praying for the full and speedy recovery of little one-year-old Legend Smalls,” he added.

The clerk at the Houston gas station told ABC13 there is a surveillance video of the shooting. Body camera footage, if it exists, has not been given to the attorneys, Crump said.

“Why would they shoot knowing she was in the car? Not knowing who else was in the car. There could have been children, there could’ve been others in the car, but they shot,” Crump said. “Regrettably and tragically, little Legend will live the rest of his life with the consequences of their decision to shoot into his mama’s car even though they knew she was in there.”

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