Journalist Tonita Cervantes arrested at Standing Rock

Freelance photojournalist Tonita Cervantes’ suit against the City of Mandan, North Dakota, the surrounding Morton County and various law enforcement officers for constitutional violations during her 2017 arrest and detention was dismissed on March 1, 2024, according to court documents reviewed by the U.S. Press Freedom Tracker.

Cervantes was covering demonstrations against the Dakota Access Pipeline in Morton County in February 2017 when she was tackled by law enforcement and arrested while identifying verbally and with labeled clothing as press, she told the Tracker in 2023.

All of her gear, including a phone, a camera, memory cards and an external battery pack, was seized, and she was forced to remove all but a thin layer of clothing, then held in what she described as a dog cage that was periodically flooded with frigid air.

Cervantes was charged with intentional obstruction of government function — a charge that was later dismissed for lack of probable cause. Her seized equipment was returned after the National Press Photographers Association wrote a letter demanding its release.

Cervantes filed her suit in December 2022, alleging violations of her First, Fourth and Fourteenth Amendment rights during her arrest and detainment.

In March, the court granted the defendants’ motion to dismiss Cervantes’ claims, ruling that the law enforcement officers who arrested Cervantes were reasonably enforcing a federal evacuation order, not retaliating against Cervantes for her journalistic activities, and that the officers named in the complaint were involved only in her arrest, not detention.

“The judge has ignored facts and given law enforcement the cover of qualified immunity,” Cervantes told the Tracker via email. “We applaud all journalists who face this kind of danger and abuse with courage and determination and who do not back down.”

Editor’s Note: This story has been updated to include a comment from photojournalist Tonita Cervantes.

Editor’s Note: Following the filing of Cervantes’ lawsuit in December 2022 and an interview with her in January 2023, this incident has been updated to include her full accounting of her arrest. Updates have also been made to the metadata to reflect an assault during her arrest, dates of status changes to the arrest charges and specific quantities and types of equipment seized.

Freelance photojournalist Tonita Cervantes was arrested on Feb. 22, 2017, while covering demonstrations against the Dakota Access Pipeline in Morton County, North Dakota.

Cervantes told the U.S. Press Freedom Tracker in January 2023 that the protesters, who referred to themselves as Water Protectors, were evacuating the Oceti Sakowin camp that day in compliance with orders from the U.S. Army Corps of Engineers.

After holding a ceremony that morning with speakers, dancers and singers honoring the sacrifices made by the protesters, the demonstrators began to march out of the camp. Cervantes said that she was in the front with several other photojournalists.

“We headed toward Cannon Ball Bridge, and I was running backward to capture as much as I possibly could with my camera and my live feed.” Cervantes said.

While some people boarded buses parked at the bridge to transport them to bus or train stations, Cervantes continued walking north on Highway 1806 alongside approximately 50 people. She told the Tracker that law enforcement officers from a number of agencies were waiting there.

“I was trying to be a witness to history and to record what was about to take place and what was happening,” Cervantes said. An officer instructed them to return to the bridge, saying that if they did not they would all be arrested, including members of the press. Cervantes told the Tracker that a man standing next to her asked the officers whether they had read George Orwell’s book “1984,” and said that they were deciding who was and was not allowed to record.

“Within just five seconds of him saying that I got tackled,” Cervantes said. “I was clearly identified as press: It was on the front of my poncho, it was on the back of my poncho and — as they found out later when I was strip-searched — it was on my fluorescent green boxer shorts that a friend had given me to keep warm.”

Cervantes said she also verbally identified herself as press, but she was still detained, her wrists tightly zip-tied and all of her gear seized, including her phone, camera, 14 memory cards and an external battery pack. Over the course of her detainment, Cervantes said the zip ties were secured so tightly that they were removed multiple times before she was ultimately cuffed using metal handcuffs.

Cervantes said officers transported her and the other detainees to the Mandan Police Department. Once there, she was told she had too many layers on and was forced to strip down to a thin long-sleeve shirt and leggings without shoes. She and another woman were held in what Cervantes described as a dog cage, sitting on a concrete floor near a door that would fill the room with frigid air whenever it was opened.

After a couple of hours, Cervantes said she and eight others were again loaded into a van and transported to the Lake Region Law Enforcement Center near the Canadian border.

Cervantes said she was released on Feb. 23 — nearly 24 hours after she was detained — after pleading not guilty at a remote arraignment hearing. According to a lawsuit later filed on Cervantes’ behalf, she was charged with intentional obstruction of government function, a Class A misdemeanor punishable by a year in jail.

Her seized equipment was returned on March 1, after the National Press Photographers Association wrote a letter demanding its release.

According to Cervantes’ lawsuit, Morton County District Judge Bruce Romanick dismissed the charge on April 27, citing lack of probable cause. Morton County appealed the dismissal in May, but voluntarily withdrew the appeal in early July. On July 9, the North Dakota Supreme Court ordered the dismissal to stand.

Cervantes filed her lawsuit against the City of Mandan, Morton County, County Sheriff Kyle Kirchmeier, Deputy Sheriff Dion Bitz, Mandan Police Officer Tricia Schmeichel and three other officers on Dec. 19, 2022, alleging violations of her First, Fourth and Fourteenth Amendment rights.

“[Cervantes] was attacked, arrested, imprisoned and prosecuted because she was a photojournalist engaged in Constitutionally protected activity and to retaliate against her for doing so,” the lawsuit states. “Her arrest, imprisonment and prosecution were not isolated incidents.”

The Tracker documented the arrests of eight journalists, including Cervantes, covering the protests on the Standing Rock Sioux Reservation from October 2016 to February 2017.

Cervantes told the Tracker in early 2023 that, after seeing the number of journalists and photojournalists killed around the world, she filed the suit to fight to ensure freedom of the press and that the truth be told.

“I love this country, and I think it is my responsibility as a citizen and as a photojournalist to uphold the First Amendment to the best of my ability,” she said. “If we don’t do that, if we’re too afraid, then the Constitution is meaningless.”

The Morton County Sheriff’s Department did not respond to calls requesting comment on the arrest or Cervantes’ lawsuit.