Quota: Officer Sues NYPD Alleging Retaliation After He Refused To Racially Target Male Blacks And Latinos


Officer Michael Birch

 A 16-year veteran on the New York Police Department (NYPD) in a lawsuit claims he’s endured retaliation from supervisors for the last five years, including poor performance evaluations after he refused to violate the civil rights of  Blacks and Latinos by subjecting to them to illegal stops and searches in order to meet his unit’s monthly per-officer arrest and summons “quota.”

The officer, Michael Birch, 44, who identifies as White/Latino has tape-recordings of his supervisors trying to enforce the quota system dating back to 2011 that he says will buttress his allegations.

He says after he was given a poor annual performance evaluation his supervisor, Capt. Constantin G. Tsachas, told him he wasn’t stopping enough Black and Latino males.

The effect of the quotas, or “performance goals” was to “artificially drive arrest, summons and other enforcement activities to the detriment of citizens of color,” Birch alleges.

As a result of the quota system, many Black and Latino citizens were being “stopped, frisked, issued legally baseless summonses, and even falsely arrested” Birch claims in the lawsuit.

The NYPD in turn “continues to be besieged with complaints” by Black and Latinos about its illegal use of  the “performance goals” Birch claims in the lawsuit.

Birch claims in his lawsuit that even though the NYPD denied its existence, the illegal “performance goals” were “a highly developed system designed to generate revenue and pecuniary gains to the detriment of citizens of color.”

Birch in the lawsuit claims he complained to Tsachas and other NYPD supervisors that forcing officers to meet the illegal “performance goals” caused them to violate “the civil rights of citizens of color..”

Birch alleges other police officers have also been retaliated against especially “police officers of color.”

The retaliatory actions by supervisors also involved being transferred away from his partners, denial of vacations, denial of requested days off, denial of overtime, being placed on performance evaluation and modified duty, and being assigned to patrol the R and F trains, which White officers and supervisors refer to as the “ghetto” because most of the commuters who use those lines are Blacks and Latinos, Birch alleges.

Officer Birch, who is also a U.S. Military Veteran, filed the lawsuit Tuesday in federal court in the Eastern District of New York claiming violation of his first amendment right to free expression by the NYPD which punished him for complaining about the alleged quota system and for violation of his civil rights. He claims the NYPD subjected him to unlawful employment practices.

The defendants include Capt. Constantin G. Tsachas, Officer Birch’s former supervisor at the Transit Police’s District #34. Other defendants are: current NYPD commissioner William J. Bratton; former NYPD commissioner Raymond Kelly; Joseph Fox, the former chief of the Transit Police Bureau; and, the NYPD.

In his lawsuit Birch claims he opposed the quotas, or “performance goals” as the department refers to them because it “violates the NYPD’s core mission and his own commitment as a police officer to protect and serve the public at large irrespective of race.”

Birch claims in his lawsuit that he had an “exemplary record” before the retaliatory actions against him started soon after pressure by supervisors for the “performance goals” intensified in 2011.

The Transit police’s District #34 even developed a “detailed monitoring system including computer databases used to track, analyze and categorize police officers to ensure their compliance” with the illegal “performance goals,” Officer Birch claims in the lawsuit.

At Transit’s District #34 officers were credited for issuing “good” summonses, or Transit Adjudication Bureau (TAB) summonses,  especially for fare evasion. This is because fare-beaters likely also had warrants so the police officers could justify arresting them. Littering, on the other hand, didn’t result in arrests and those summonses were considered “bad.”

Officer Birch claims he was first written a poor performance evaluation in May 2012 after he was accused of “lack of effort” in meeting the targets, which Capt. Tsachas had set at 10 TAB summonses and 1 arrest per-officer per-month, he claims in his law suit.

Before the negative evaluation of 2.5  Birch claims he was warned in December 2011 by Sgt. Richard Healy, who is White, and Lt. Paul Ng, who is Asian, that Capt. Tsachas told them to let him know he would get a poor review due to his “lack of arrest and summons activities.” He could avoid it by increasing “his arrest and summons activities” before the end of the year,  Sgt. Healy told him.

When he complained Birch alleges that Healy said, “we’re not enforcing a ‘quota,’ we just want to make sure you are on ‘par’ with everyone else on the platoon.”

After the poor evaluation Birch was also placed on Level One Performance Monitoring, which is managed by the NYPD Employee Management Division (EMD) which is “used to unfairly punish police officers who refuse to meet the illegal ‘performance goals’ imposed upon them”  Birch alleges. Those penalized are mostly Black and Latino officers.

On August 24, Capt. Tsachas told him in a meeting together with a Lt. Frank Monti and a sergeant Mai that he was being rated even lower, a 2.0, on his Interim Performance Evaluation due to his “lack of activity” Birch alleges, adding that he refused to sign the performance evaluation.

At the same meeting, while reviewing computer data, Capt. Tsachas told him he wasn’t stopping “enough” Black and Latino males, Birch claims. Tsachas also seemed “incredulous” that the data showed him actually stopping too many females. He wanted to know why 48% of the people he stopped were female.

In one of the recordings, one supervisor is heard asking him why he wasn’t stopping enough of the “the bad guys” who are Black and Latino males.

“You know who the perps are..” the supervisor says, “male Blacks between the ages of 15 and 16…..”
He tells Birch that by approaching them “you’re not being racist…”

“It’s hard for us to really go to bat for you….” unless he improved his numbers, a supervisor said. The supervisor urges him to increase his activity and not “wait until a robbery is committed.”

He says Birch must be “more proactive” and “not reactive…”

“You’ve gotta step it up…” he says, “you’re capable of doing the work…”
“If you don’t get the activity there are consequences,” the supervisor says, alluding to the poor evaluation.

Another supervisor is heard saying, “Innocent people are victims of crimes and it’s up to you to be pro-active, to stop the crime from happening..”

Birch is heard saying he stops everyone who commits an infraction and that he doesn’t stop anybody by race, nationality or gender.

Birch in an interview with The Black Star News says he felt Capt. Tsachas was able to speak to him so openly about the racial targeting because of his appearance and last name; some people see him as a White Latino while others see him as a White male.

“This is ridiculous,” Birch says, of the demand that he arrest Black and Latino males even before they committed any infractions. “I wouldn’t bow down to their corrupt system.”

Birch says his father was dark-skinned Latino, and he saw how he was also profiled; his mother was White, Irish and Italian.

Birch recalled an incident when he stopped a Black male because he resembled the description of a bank robbery suspect that had gone out on police radio; he even made the Black male listen to the announcement and then he agreed to be searched.  It turned out the man he frisked was unarmed and not the suspect. “He thanked me. He said this was the first time he had been treated with respect and not thrown against the wall and made to feel his life was under threat,” Birch recalled.

“Unfortunately, people falsely believed with the appointment of a federal monitor and inspector general, the Mayor and NYPD management would stop violating people’s civil rights that is laughable,” says Eric Sanders, the attorney representing Birch. “At this point, there is no political desire to end these practices. After all, the powers that be are more concerned about their personal legacies than the civil rights of the citizens. Quite frankly, the only way to stamp out this fraud and corruption is to aggressively hold people accountable with firings, civil liability and prison.”

After Birch’s poor evaluation in early 2012, the retaliatory actions continued from August; on September 26, 2012, he was placed on “Modified Assignment” under the authority of Joseph Fox, then head of the Transit Police, he alleges. Birch claims he was also accused of giving false and misleading statements about some entries he had made in a notebook, complaining about the illegal “performance goals.” He claims he wasn’t the person who placed the notebook at the location where it was found and seen by supervisors.

Birch was then transferred to the Housing Police Service Area, which he contends was part of the retaliation campaign.

In October, 2012 he was informed by the EMD that he was being placed on Level Two Performance Monitoring based on the recommendation of Tsachas. Birch claims he told the EMD that he was being retaliated against for rejecting the quota system but this was never reported the Internal Affairs Bureau (IAB) as required by the NYPD’s Patrol Guide.

Birch was restored to “full duty” in February 2014 and transferred to the 69 precinct. At his new job he would now be performing regular street patrols as opposed to the New York City Transit Authority Transportation System, so he asked his new commander for additional training but was denied,  Birch alleges.

The retaliatory actions dating back to his days at Transit District #34 continued; on February 24, 2014, he was formally charged in connection with the notebook incident, even though about 30 other officers had been interviewed about it, Birch alleges.

On January 2015 Birch was transferred to the 79 Precinct. On September 16, 2015 the retaliatory actions continued and he was formally charged with mishandling a domestic violence assignment, Birch alleges.

The NYPD in the past has denied that officers are required to meet an arrest and summons quota.

Birch also cites Shira A. Scheindlin denial of the NYPD’s motion for summary judgment in a class-action challenge to the stop-and-frisk program in  Floyd v. City of New York.  Judge Scheindlin on that occasion found that there was “a triable issue of fact as to whether the NYPD leadership has been deliberately indifferent to the need to train, monitor, supervise, and discipline its officers adequately in order to prevent a widespread pattern of suspicionless and race-based stops.”  She described recordings from the 81st Precinct as “smoking gun” evidence of the existence of illegal “quotas.”

Judge Scheindlin later, on August 12, 2013  ruled that the NYPD had  “violated the Fourth Amendment by conducting unreasonable searches and the Fourteenth Amendment by systematically conducting stops and frisks in a racially discriminatory manner.”

Since 2002 five million citizens have been stopped and frisked, Birch alleges in his lawsuit, citing NYPD statistics.

The “overwhelming majority stopped” were Blacks and Latinos,  Birch alleges and past studies show.

Before 2010  New York State law protected NYPD officers from retaliation if they didn’t meet quotas for traffic stops. Then in August 2010, then Governor David Paterson signed an amended legislation that broadened the protection to cover illegal “quotas” for summonses, arrests, and stop-and-frisk activities, which protection Birch claims the NYPD has violated by retaliating against him.

Birch claims the NYPD through its Legal Bureau “flaunted” these protections by claiming supervisors can set “performance goals.”  These  “performance goals” are just illegal “quotas” cloaked in different language, Birch alleges.

The “performance goals” have also created strains between police officers and diverted resource from more important police work, Birch alleges in the lawsuit.

All his travails with the NYPD started after he rejected the quota system, Birch claims in his lawsuit.

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