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FAIR FORCE, OR FOUL?

Nine seconds after they enter the room, two deputies push a handcuffed inmate head-first into a concrete block wall.
The struggle continues, and 23 seconds later, now with five deputies in the room, they shove him into the wall again, and the inmate falls to the floor.
More than a minute goes by. At times, there are up to six deputies in the room. Again, they push the inmate against the wall.
This is a video Erie County didn't want you to see.
Two attorneys fought for nearly two years to get nine minutes of security footage from an underground holding cell released.
They want you to be able to judge: Is this excessive force?
"You see someone who is handcuffed and can't raise his hands, can't do anything to defend himself or to hurt anyone else, having six people with their hands on him and at times hitting his head against the wall," said Nan Haynes, one of the two attorneys who represent the inmate, Marquez Mack. "I just don't see how you can say there was any justification for it."
The Erie County Sheriff's Office, in court papers, contends that what happened in the holding cell Jan. 29, 2010, as Mack was escorted from the county courthouse to the Erie County Holding Center, was "reasonable, necessary" and that Mack was "uncooperative and physically combative."
Sheriff's officials won't say much more because of a federal lawsuit Mack has filed against the department, alleging it violated his civil rights on two occasions while he was a Holding Center inmate.
In court papers, the Sheriff's Office denies that Mack was assaulted during the incident and says that any injuries he suffered were the result of Mack's "own negligent, careless" behavior or "intentional conduct."
A spokesman for the department, Undersheriff Mark Wipperman, declined to answer questions about the video because of the lawsuit.
But one thing is clear. They didn't want the public to see this video.
County attorneys argued for nearly two years that they should be able to keep the video from the public's view. At one point, they asked that if the courts did release the video, a judge stipulate that it wouldn't be given to the media.
Then, last month, an appeals court ruled that it must be released. Under state law, the judges ruled it is public information.
"You've got to ask yourself, 'Why don't they want the public to see it?' " said John Ned Lipsitz, an attorney for Mack.
>Mother says he mouthed off
The video was recorded by a security camera in the corner of a court holding cell used when inmates are transferred through an underground tunnel between the courthouse and the Holding Center. Mack, then 22 and facing a second-degree robbery charge, was with a group of 14 inmates being escorted by deputies back to the Holding Center.
The Sheriff's Office, in court papers, states that Mack was removed from the group and taken back to the court lockup after he became "uncooperative and belligerent." Mack's mother has told The Buffalo News that Mack was singled out because he mouthed off.
Mack, in the video, is surrounded by the deputies and obscured from view during much of his interaction with them. It is clear that he is pushed into the wall on three occasions. It is not clear how forcefully that happens.
The video shows several other things clearly -- including the fact that Mack is handcuffed and is outnumbered by as many as six deputies who appear in the room. They eventually leave Mack alone in the cell. He then paces back and forth for several minutes.
"It happened underground in an isolated place, certainly not in a place where the public could scrutinize what was going on," Lipsitz said. "And it makes you wonder, if he was being uncooperative, why didn't they just lock arms and back away and then close the door? He was in a cell."
What happened in the court holding cell is the subject of Mack's lawsuit against the county. Mack alleges the deputies "seriously and violently assaulted him" by "kicking, punching" and "slamming his head into a wall."
He alleges that he suffered "multiple injuries" to his head and body after the incident, was treated in Erie County Medical Center and was on crutches for several months because of a knee injury.
Mack's attorneys, Lipsitz and Haynes, believe the video will shed light on a government-run facility that has been scrutinized for its treatment of inmates. At the time of the 2010 incident, the county was locked in a lawsuit with the U.S. Department of Justice over conditions at the county's jails. The lawsuit was later settled, with the county agreeing to a list of improvements at the Holding Center.
"One of the real problems highlighted by the Department of Justice was the use of excessive force," Haynes said. "I think if people can actually see, rather than just read about, someone being subjected to excessive force, it may be easier to understand why it's wrong."
>County cites risks of release
Mack, through his attorneys, first sought the video through a Freedom of Information Law request in 2010 after filing a grievance over the incident. County attorneys made several different arguments in court why it shouldn't be released.
They cited "unwarranted invasion of personal privacy," said the video would "reveal security information" and argued that it would "endanger the lives or safety" of individuals.
All three reasons eventually fell apart in court.
"It seemed to me and to my client that this is evidence," Lipsitz said. "And, you know, people can look at it and see different things in it, but it's visual evidence of government abuse, and that's what the Freedom of Information Law is designed to allow citizens to have access to."
Mack's grievance for the January 2010 incident was referred to the Sheriff's Professional Services Division for investigation, according to court documents, but the Sheriff's Office has never revealed the outcome.
Mack, of Buffalo, was later sentenced to six years for second-degree robbery and is in state prison. He also says in his federal lawsuit against the county that he was again assaulted April 28, 2010, in a Holding Center elevator. He says deputies forcibly took his crutches from him, struck his head against the floor, bent his arm and handcuffed him.
>Mack judged guilty of assault
City Court documents show that Mack was found guilty in Buffalo City Court of second-degree assault for the same April 2010 incident at the Holding Center. A sheriff's deputy in that case accused Mack of attempting "to elbow" him as he escorted Mack to a housing unit, giving the deputy a bruised hip.
A State Commission of Correction committee reviewed a grievance filed by Mack related to the April 2010 incident, but after reviewing medical records, his appeal was denied, said Jessica Scaperotti, a spokeswoman for the commission.
Mack's attorneys said they believe the January 2010 video would have been released to them as part of his federal lawsuit, but without their state court battle, it would likely have been shielded from public view.
The New York Civil Liberties Union, calling the visual evidence a "critical source of information for a public seeking to confirm or deny allegations of government misconduct," also advocated its release.
"These materials are particularly important in the jail and prison context, where stories of government wrongdoing often devolve into a swearing contest between prisoners and correctional officers," wrote Civil Liberties Union attorney Corey Stoughton. "Video evidence serves an important truth-seeking function by corroborating prisoner testimony and also protecting correctional officers from unjustified accusations."
email: djgee@buffnews.com