Surveillance Does Not Violate Deputy’s Privacy Rights

David Brock was a deputy with the Douglas County, Nebraska Sheriff’s Department. In 2007, Brock sustained injuries to his neck and shoulder when struggling with a suspect while on duty. Brock filed a claim for workers’ compensation benefits.

As early as May 2007, the County hired private investigators to periodically place Brock under surveillance and to report on Brock’s physical abilities. By February 13, 2009, Brock was released by his doctor to return to light duty for four hours per day at the Sheriff’s Office. From February 13 through 16, Brock was again placed under surveillance. Including the most recent surveillance, Brock was under surveillance for a total of approximately 100 hours from May 2007 through February 2009. On February 13, an investigator videotaped Brock while he was operating his pickup truck with a snowplow attached to it for five hours. During that time, Brock was clearing snow from business parking lots for his father’s lawn maintenance and snow removal business.

Weeks later, when Brock’s doctor saw the snowplow video, he asked Brock about the range of activities that Brock could perform and specifically asked Brock whether he could operate a snowplow. Brock responded that there was “no way” he could drive a truck or operate a snowplow. A physical therapist who later examined Brock indicated that Brock had “self-limited several of the lifting tasks,” and that he could not complete an accurate assessment of Brock’s physical abilities due to this self-limiting behavior.

The County terminated Brock for being untruthful in his interactions with physicians, workers’ compensation personnel, and Department investigators. Brock then sued the County, alleging that the surveillance violated his privacy rights under the due process clauses of the Constitution.

The Nebraska Supreme Court rejected Brock’s claims. The Court noted that “challenges to surveillance in workers’ compensation cases are not uncommon. By making a claim for personal injuries an employee must expect reasonable inquiry and investigation to be made of her claim and to this extent her interest in privacy is circumscribed.

“Here, the surveillance was not unique to Brock, it served a valid purpose, and it was not intrusive. The County authorizes surveillance in approximately five to ten cases per year to help verify the level of physical activity of the claimants outside the work environment, and then to correlate that activity with the medical treatment records. When Brock was under surveillance, he was in places that were open to the public, and he was not videotaped regarding personal matters. In particular, Brock exposed himself to public observation when he plowed snow in a business parking lot. By the introduction of this evidence, the County demonstrated that Brock’s privacy interest had not been violated and that they were entitled to judgment on this theory.”

Brock v. Dunning, 288 Neb. 909 (2014).