When NYPD officer Michael Birch was summoned into a performance evaluation meeting with his commanding officer and a lieutenant one day in August 2012, he was expecting to hear more of what he’d heard in the past about the way he did his job: that he wasn’t generating enough “activity.” As an officer in the transit bureau, he says, that meant being told to issue more summonses for fare evasion, and arresting more people for stealing fellow straphangers’ cell phones.
Instead, “the conversation just turned completely weird to me,” he said in an interview this week. “Because he’s basically telling me it’s OK to racially profile.”
Birch provided Gawker with what he claims is a recording he secretly made of that meeting, on which a man who seems to be his commanding officer can be heard repeatedly questioning him about his recent summonses, placing particular emphasis on the fact that he has only stopped two black men out of 54 total people. “Two male blacks,” the man says at one point. “So you’re telling me you only saw two male blacks jump the turnstile?”
In January, Birch filed a federal lawsuit against the city and several individual NYPD officials, alleging that he was retaliated against for speaking out about what he calls an illegal quota system. A judge dismissed his complaint, and he filed an appeal with a higher court last month.
The New York Daily News made reference to Birch’s recording and quoted from it, in a January story about his lawsuit, though it did not publish the recording itself. A roughly two-minute excerpt from Birch’s original 36-minute recording is below, followed by a partial transcript.
(On the recording, the men make reference to “TABs” and summonses that “pop.” TAB is NYPD jargon for a summons issued for a transit violation such as turnstile jumping; according to Birch, “popping” refers to when a summons leads to an arrest, because the person you’ve stopped has a warrant against them.)
Commanding Officer: Who commits the crimes in the city?
Birch: Who commits the crimes? Well, it’s mostly teenagers, anywhere between the ages of 15 and 19, mostly male blacks and Hispanics.
OK. Who are you stopping?
Everybody. I stop everybody.
Fifty-four TABs up to 8/20. Twenty-five of those are female. Half.
Like I said, I stop everybody. I’m not targeting anybody.
You just told me who the bad guys are.
Yeah, I know that. But there’s also other people who are committing violations as well. I’m not saying that there’s not violations being made.
The male blacks, that you told me commit the crimes—
Plenty of people that I write summonses to are male blacks and male Hispanics.
You stopped two male blacks.
Not for the whole year. You’re telling me for the whole year I only stopped two male blacks on summonses?
8/20. From January 1st to August 20th. Fifty-four TABs: two male blacks, seven Hispanics, seven other, ten white, three Asian. So where are you targeting the perps that you just told me?
Like I said, if I don’t see a perp jumping over the turnstile, what am I supposed to do to him?
These people are not going to pop.
How do I know that? A female Hispanic that I stopped in Sheepshead Bay did pop, actually, for a warrant, and I arrested her. Female Hispanic. The Hispanics that we’re supposed to be going after. That are committing the crimes. The people that I—
Did you think that she was going to pop?
Did I think she was going to pop? I didn’t put no thought into it. If you come up for a collar, I’m taking you in.
Here’s what I see. You just described to me who’s committing the crimes. You’re fully aware of it. But you’re not targeting those people.
I am. I’m targeting everybody.
Two male blacks.
Whoever is out there. If I—
So you only saw two male blacks jump the turnstile?
If you’re saying that’s what’s in front of you, then yes, that’s all I saw, is two male blacks for the whole year jumping the turnstile. If you’re saying that’s what’s in front of you, I’m not disputing that. If that’s what I got there.
That is what you have. That is not disputed here.
I’m saying, we’re also talking Hispanics as well. I stopped a lot of Hispanics, too.
Seven male Hispanics. But more than half are female.
And like I said, everybody’s committing violations in front of me.
Birch, who is part Puerto Rican, said he interpreted the commanding officer’s questioning as instructions to issue summonses to black men more often. “I was shocked,” he said about the meeting. “I was not only shocked, I was mad. My last name is Birch. I look white. They didn’t realize I was a Puerto Rican kid, and they’re just saying this to me like it’s OK. It’s OK, we’re amongst friends.”
“I don’t want to be stopped because I’m Puerto Rican,” he added. “I want to get stopped because I did something wrong.”
Birch’s commanding officer at the time was Constantin Tsachas, then captain of the transit bureau’s 32nd district, and Birch said that it is Tsachas who can be heard questioning him on the recording. Tsachas did not respond to multiple emails and phone calls to numbers associated with his name requesting comment on this story. The NYPD’s press office also did not respond to multiple requests for comment.
As the Daily News noted last month, Tsachas was recently cleared for a promotion from captain to deputy inspector. Tsachas is named as an individual defendant in Birch’s suit, along with NYPD Commissioner Bill Bratton; former commissioner Ray Kelly, who led the department at the time that Birch made his recording; and Joseph Fox, chief of the NYPD Transit Bureau. In June, Bratton defended Tsachas’s promotion to deputy inspector. “I have full faith and support in him,” the commissioner said. “This department does not engage in quotas and does not push its officers for activity that’s inappropriate.” Bratton did not respond to comment on this story.
John Scola, Birch’s attorney, said his client is suing to combat what he sees as a larger trend of policing that disproportionately affects minority New Yorkers. Scola is also representing the so-called “NYPD 12,” a group of NYPD officers of color that has filed a class-action suit against the city over the alleged use of quotas in policing. “The targeting of minorities by the NYPD has caused so many problems throughout our city yet the NYPD continues to promote officers who engage in these activities,” he said.
The NYPD has made strides toward reducing discriminatory policing since Bratton became commissioner in 2014, such as drastically cutting back the use of stop-and-frisk and limiting arrests for certain “quality of life” crimes like public drinking and urination. Birch, a 16-year NYPD veteran who works in the 79th precinct after being transferred out of the transit bureau, believes that the department has gotten marginally better since he made the recording, when Kelly was commissioner, but only because of officers who speak out against discrimination, like those in the NYPD 12. He said that the issues he takes with the department are primarily driven by a systematic emphasis on statistics. Commanding officers need to be able point to the numbers of people arrested and given summonses in their districts if they want to be promoted, he said, and one good way to grow those numbers is to place pressure on the officers on the ground.
“It’s very hard to have a job where the whole public is against you, including your bosses. And when you actually try to do something right, they don’t care,” he said. “I can’t wait to get away from this place.”