Rosario v. City of New York et al

Filing 366

ORDER re: 327 Letter, filed by City Of New York, Irwin Silverman, Gary Whitaker, Richard Martinez, Charles Cruger. It is hereby ORDERED that the objection is OVERRULED. Given the current conditions of the COVID-19 pandemic in New York, the presence of unvaccinated jurors presents an undue risk of the spread of COVID-19 for vaccinated jurors and an undue risk of disruption to the trial. The CDC currently reports that the risk of community transmission in New York County is high and that the current case rate is 3,027.68 per 100,000. Ctrs. for Disease Control and Prevention, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county view?list_select_state=New+York&data-type=Risk&list_select_county=36061 (J an. 12, 2022, 8:00 PM). As another Court in this District found, "Jury service is a civic duty and, while it can be inconvenient, it need not increase the risk of being exposed to a deadly disease." Joffe v. King & Spalding LLP, No. 17 Civ. 3392, 2021 WL 5864427, at *1 (S.D.N.Y. Dec. 10, 2021). Defendants first argument is that a jury without unvaccinated individuals would undercut diversity. Defendants do not offer any data in support of this argument. The latest data from the State o f New York suggests that there are not significant disparities of vaccination rates by race or gender. For example, 76.5% of males are vaccinated and 80.0% of females are vaccinated. N.Y. State Dep't of Health, Demographic Vaccination Data, https://coronavirus.health.ny.go /demographic-vaccination-data (Jan. 12, 2022, 11:00 AM). As to race, African American New Yorkers make up about 1.5 percent more of the total population compared to the vaccinated population and White New Yorker s make up 2.7 percent more -- meaning an all-vaccinated jury might very slightly underrepresent African American and White individuals. Id. On the other hand, Asian and Hispanic New Yorkers are overrepresented in the vaccinated population. Id. Noneth eless, race is not expected to play a significant role in the trial and the witnesses and parties themselves have diverse backgrounds, so there is no reason to believe the racial composition of the jury would prejudice the outcome of the trial. There are some variations of vaccination rates by age. Id. Younger New Yorkers are much less likely than older New Yorkers to be vaccinated, but there is no reason to expect this variation to influence the jury's impartiality. (as further set forth h erein). To the extent Defendants are concerned that this Order forecloses unvaccinated witnesses or parties from participating in the trial, their concern is misplaced. The issue Defendants object to is the excusing of unvaccinated jurors for cause, not the participation of unvaccinated witnesses or parties. (Signed by Judge Lorna G. Schofield on 1/13/2022) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RICHARD ROSARIO,
:
:
Plaintiff,
:
:
-against:
CITY OF NEW YORK, et al.,
:
Defendants. :
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18 Civ. 4023 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, the jury trial scheduled in this case is scheduled to commence on January
25, 2022, at 9:45 a.m.
WHEREAS, on December 15, 2021, Defendants filed an objection to the Court excusing
for cause potential jurors who are not vaccinated. It is hereby
ORDERED that the objection is OVERRULED. Given the current conditions of the
COVID-19 pandemic in New York, the presence of unvaccinated jurors presents an undue risk
of the spread of COVID-19 for vaccinated jurors and an undue risk of disruption to the trial. The
CDC currently reports that the risk of community transmission in New York County is high and
that the current case rate is 3,027.68 per 100,000. Ctrs. for Disease Control and Prevention,
COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#countyview?list_select_state=New+York&data-type=Risk&list_select_county=36061 (Jan. 12, 2022,
8:00 PM). As another Court in this District found, “Jury service is a civic duty and, while it can
be inconvenient, it need not increase the risk of being exposed to a deadly disease.” Joffe v. King
& Spalding LLP, No. 17 Civ. 3392, 2021 WL 5864427, at *1 (S.D.N.Y. Dec. 10, 2021).
Defendants’ first argument is that a jury without unvaccinated individuals would
undercut diversity. Defendants do not offer any data in support of this argument. The latest data

from the State of New York suggests that there are not significant disparities of vaccination rates
by race or gender. For example, 76.5% of males are vaccinated and 80.0% of females are
vaccinated. N.Y. State Dep’t of Health, Demographic Vaccination Data,
https://coronavirus.health.ny.gov/demographic-vaccination-data (Jan. 12, 2022, 11:00 AM). As
to race, African American New Yorkers make up about 1.5 percent more of the total population
compared to the vaccinated population and White New Yorkers make up 2.7 percent more -meaning an all-vaccinated jury might very slightly underrepresent African American and White
individuals. Id. On the other hand, Asian and Hispanic New Yorkers are overrepresented in the
vaccinated population. Id. Nonetheless, race is not expected to play a significant role in the trial
and the witnesses and parties themselves have diverse backgrounds, so there is no reason to
believe the racial composition of the jury would prejudice the outcome of the trial. There are
some variations of vaccination rates by age. Id. Younger New Yorkers are much less likely than
older New Yorkers to be vaccinated, but there is no reason to expect this variation to influence
the jury’s impartiality.
Defendants’ second argument is that foreclosing jury service to unvaccinated individuals
implies that only certain people can participate in jury duty, and that those people should be able
to fulfill their civic responsibilities as impartial jurors. There is no doubt that unvaccinated
individuals can serve as impartial jurors. The concern warranting the exclusion of unvaccinated
jurors currently is one of safety of all participants in the trial and, ultimately, a desire to reduce
the risk of disruption. See Joffe, 2021 WL 5864427, at *4-5. Further, the decision to exclude
unvaccinated jurors from this trial in this moment, while the Omicron variant is taking hold, is
not meant to foreclose unvaccinated individuals from fulfilling their civic duty at some point in
the future when the risks of catching and spreading COVID-19 are not so high.

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Defendants’ third argument is that there are safety protocols in place in the courthouse so
unvaccinated jurors will not pose any issues. While there are protocols in place within the
courthouse, the risk of unvaccinated jurors is that they may disrupt the procedures because they
are more likely to catch COVID-19 outside of the courthouse. See id. at *5.
Defendants’ fourth argument is that jurors are typically only excluded for cause where
they cannot decide a case fairly and impartially. This argument overlooks the Jury Selection and
Service Act of 1968, which provides courts with the authority to exclude any person summoned
for jury service “on the ground that . . . his service as a juror would be likely to disrupt the
proceedings.” 28 U.S.C. § 1866(c); see also Joffe, 2021 WL 5864427, at *4-5 (discussing the
higher risk of disruption posed by unvaccinated jurors).
To the extent Defendants are concerned that this Order forecloses unvaccinated witnesses
or parties from participating in the trial, their concern is misplaced. The issue Defendants object
to is the excusing of unvaccinated jurors for cause, not the participation of unvaccinated
witnesses or parties.
Dated: January 13, 2022
New York, New York

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