The Place Memory of Small Things

The nights afterwards in this place were not bad like the first one, because I then had my bearings. All my senses had touched the objects about me. But it was lying in that smothering dark and not knowing what was near me – what I might touch if I reached out a hand – that made the first night so horrible.

Emily Carr, from her memoir Klee Wyck (1941)

Life is not some high pursuit of truth and beauty. It is remembering where you put something. I call this the place memory of small things. This memory functions only in coordination with proprioception – the sensory system in muscles, joints, and tendons that tells your body where it is in space and in relation to other objects. It’s not enough to remember where you left something. Your body has to then figure out how to move through space to find it. Proprioception helps you find things. It also keeps you from falling off cliffs.

I love the word. It sounds like a dance I am doing when I am looking for the turmeric I thought I left in the spice drawer only to twirl and find it on the kitchen counter.

Once your body has put something down or found its way to some destination and your brain remembers this information, your body, as a general rule and until systems start failing, will find the object or get you where you want to be, again and again and again. Decades can go by, and place memory for small things will help you find something you left in a box in the basement.

And all the searching occurs in the background, quietly, hundreds, if not thousands, of times a day. This graceful and barely acknowledged fluidity of moving through space looking for small things all day frees up the mind so that it seems as if all our cognitive energy is focused on the search for truth and beauty. Or perhaps on some other human pursuit such as happiness, kinship, kindness, righteousness, gratification, jealousy, malice, revenge, or mischief.

I don’t much like the dark. It is a serious impediment when wayfinding or searching for objects. Canadian artist and writer Emily Carr captured my aversion. In the late 1800s and early 1900s, she was an intrepid explorer of the First Nations lands of British Columbia catching rides on fishing boats and other watercraft, a female traveling solo except for a canine companion, usually a small Griffon. Her description of the utter darkness of her first night in the Nisga’a village of Laxgalt’ap (known also as Greenville) is testament to my dread of losing my bearings.

About ten years ago I spent a few weeks interviewing physiatrists and physical and occupational therapists for a project I was working on for Mayo Clinic. This is when I began my wonderment for the place memory of small things. People who work in the field of physical medicine and rehabilitation (PM&R) spend their careers helping people find things and to move their bodies through space after strokes, brain injuries, broken bones, joint replacements, a sports injury, as a consequence of aging, or because of Parkinson’s or other movement disorders.

People choose a career path for a lot of different reasons, some fall into a job and others have a passion. I could be wrong but it seems to me that PM&R providers fall on the passion end of the spectrum.

One thing for sure, they are always talking fervently about ADLs, among themselves or to their patients. Activities of Daily Living. Yes, that is what we do, performing ADLs over and over. Brushing teeth. Opening a cabinet. Putting on socks. Finding where we put binoculars and picking them up. Lifting a cast iron skillet. Weeding the garden. Finding the keys to put in the ignition. Finding the car where we parked it. Hugging people we love. Climbing a ladder. Bending down. Not falling down. (Try to make a list of the ADLs you perform in one day. Ha!)

It is unfortunate, I think, that ADLs is a dull acronym for our dance through life to get somewhere or to find something we need or want or someone we love.

I am writing this before I can’t find it.

Barring a swifter demise (heart attack, fatal car accident, stage 4 cancer), it is likely the dance will start to lose precision or momentum or both. There are of course those anomalous persons whose search abilities – memory coupled with proprioception – never wane until their curtain goes down. Consider the years of repetitive searches, calling on the brain to set the body in motion. It does begin to sound exhausting. When I was a Hospice volunteer, my privilege was often to sit with a person at end of life while his or her caregiver could run errands and take a break. Most often that person was sleeping. I have no medical grounds to back up my conjecture, but I came to the conclusion that the elders in my charge were simply tired of looking for things. If nothing else, it is valuable advice to self. There comes a time to lie down and stop searching.


Posted in West Saari Road | 2 Comments

Her Feet

In the days leading up to election on November 3, 2020, I happened to recall my one and only visit to the Statue of Liberty. This was a long time ago – probably in the late 70s – so my memories are dreamlike. I caught the ferry from Battery Park. We were a happy, smiling crowd, me and my ferry mates.  At least as I recall.

It was thrilling seeing her from afar in New York Harbor then watching her grow larger as we drew nearer. The commanding woman with the torch of liberty uplifted in her right hand standing on a small island.

Ellis Island opened as an immigration point of entry in 1892, six years after the statue was completed. Our Mother of Freedom stood guard over more than 12 million people who immigrated to America by way of Ellis Island.

What I remember most vividly of all my dreamlike memories were her sandal-clad feet sticking out from under her robes. They were enormous. The bulbous toes were like roots digging into the soil, the soul, of my country. Those feet meant to me that she was immovable.

I almost always have my binoculars at hand, first for birds and then for everything else I want to see up close. Binoculars are especially useful for looking at architectural details on tall buildings and structures.

I cannot prove I had them with me that day, but I must have. There would have been gulls and other birds to see flying around New York Harbor, and without binoculars I would not have been able to see so clearly and remember so well her feet. The Statue of Liberty stands on a foundation and pedestal that are a combined 154 feet in height – half the length of a football field. I will wager that most visitors to the State of Liberty never notice her feet. Neither do they see what I also failed to see, or do not remember seeing, that day with my binoculars – the broken shackle and chain that coils at her right foot and reemerges under her garment at her left.

The French government gave the Statue of Liberty to the United States in the years following our Civil War to celebrate the abolition of slavery and advance the universal ideas of democracy, freedom, and justice.

It took almost three decades of back and forth for France’s gift to become the indomitable statue she is. One item of contention was the shackle and chains. The sculptor Frédéric Auguste Bartholdi had originally placed the broken chains in her left hand, but he acquiesced to vociferous complaints from certain factions in America. Instead, Bartholdi placed a tablet in her hand with the Roman numerals for the date of the U.S. Declaration of Independence, July 4, 1776. He did not back down completely. He left the shackle and broken chain at her feet.  

Historian and civil rights activist W. E. B. Du Bois in his 1940 autobiography noted that the hope the Statue of Liberty conveyed to immigrants did not pertain to his race. And those millions of immigrants she watched over – they have not always been greeted with open arms and equal opportunities.

The Statue of Liberty is officially known as Liberty Enlightening the World. She was dedicated on October 28, 1886, a week or so before Americans go to the polls every four years to elect a president.

One hundred and thirty-four years, almost to the day, have gone by since her dedication. The Statue of Liberty is unshackled. She is free to move on but she has planted her feet. The task of moving forward is ours.

Posted in West Saari Road | 4 Comments

Swimming Upstream

Photo by David F. Smith

The Torrent Duck (Merganetta armata) inhabits fast-moving, boulder-strewn rivers and streams high in the Andes of South America. To me, these churning, chilling, deafening waterscapes are frightening to behold. A Torrent Duck is the avian equivalent of a white-water kayak, and, as the master of its own craft, it far outperforms any human kayaker. When feeding, it swims upstream – yes, against the current – diving into standing waves, boofing over boulders, surfing wave holes, ferrying from eddy to eddy. Somehow it is not swept downstream as it treads water while plunging its head or entire body underwater to nibble benthic invertebrates on submerged rock faces. The duck makes these maneuvers look like a breeze. It is designed for torrents. Evolution is elegant, clever, and bold. It leaves no niche, even the most treacherous, unfilled.

Late in the afternoon on February 19, 2020, David and I were standing on a footbridge over the Río Papallacta, as it frothed and roared down the vertiginous eastern versant of the Andes in Ecuador: Torrent Duck territory. The river runs through Guango, an eco-lodge where we would spend the last two nights of our nearly month-long trip to Ecuador.

There was something indelible about the afternoon, the emerald green of the cloud forest, the swirling silvery mists of neblina, the gun-metal gray rapids, the beckoning bridge, the roar. Perhaps I was in a heightened state of not wanting the trip to be over.

I was not counting on seeing a Torrent Duck and seeing one was not requisite for my happiness. Daniel Yanacallo had told us about the bridge. He is on the staff at Guango, a tall tree of a man, smiling, and serene, it seemed to me, in fielding the incessant queries of birders. He had told us to walk downstream to the bridge and just maybe in the late afternoon, when the ducks make a last foray to feed, we might catch a glimpse, but because of recent heavy rains, he said, the Papallacta was running high and fast, a bit much even for a bird that is a kayak.

We stood on the bridge for the next 45 minutes and this is what happened. I was looking downstream where at a distance of perhaps 200 meters the river took a bend. On a boulder at the bend I saw a speck. I put my binoculars on it – a Torrent Duck, a male. Even though it was far away, I could not imagine our good fortune. It stood there nonchalant, preening a bit, looking one way then the other. We watched for perhaps five minutes then out of the blue or rather out of the churn a female popped up onto the boulder next to him. Even from this distance, we could see their ruby-red bills and exquisite plumage, he boldly black, white, and gray, she similarly patterned above but rich cinnamon on her breast and belly. I cannot remember how long we watched them. I think I recall one or both of them plunging off the boulder briefly than returning to perch side-by-side, looking one way, then the other, like a couple just home from work having a late-afternoon conversation about what was for dinner.

Then, by god, they hurled themselves off the boulder and began swimming upstream. Towards us, I was thinking, they are coming towards us. Now I really couldn’t believe our good fortune.

They advanced upstream as if pulling themselves up a ladder, one rung, a pause, then the next rung, and so forth. Each pause they perched atop a boulder or cluster of boulders. They kept to the boulder path along the bank overhung in some places by vegetation. They did not swim in the middle churn of the river. Sometimes they disappeared as if swallowed by the stream – this made me anxious – and then astoundingly they reappeared. It was like watching a magician do a card trick.

David was taking photographs and videos. I was glued to my binoculars. I said to him, but I am not sure he heard me over the roar of the river, “I hope we can come back here someday when they have young.” I added this to the list of reasons why we had to come back to Ecuador.

Maybe five or ten minutes passed. The pair kept advancing the aqueous ladder. Perhaps they were 100 meters downstream from the bridge. Suddenly a third duck materialized from the swirl, then a fourth. By god, a family of Torrent Ducks.

The young were slightly smaller than their parents. They had black bills. Their feet had pumpkin-orange webbing. Their plumage was an elaborate chevron-pattern of black, white, and gray. They seemed as adept in the water as the adults, although once I recall one of them had a bit of a struggle leaping out of the current onto a boulder. At times one or all of them, parents and young, were out of sight longer than I would have liked. I worry about a lot of things, but I particularly worry about birds raising young. In a world of ever-shrinking habitat, autocrats dismantling environmental regulations, global climate change, and a general ignorance or indifference about the natural world among overpopulating Homo sapiens, so much is going against them.

The family kept coming. Soon they were right beneath us. From our bridge vantage, for a brief while, we could look straight down on them. I remember, although it seems dreamlike, watching a few times as a parent or young grazed on imperceptible aquatic larvae on a submerged rock face, water pouring over the boulder and the duck like quicksilver. Their bills seemed flexible, as if made of rubber.

Before we knew it, the family swam under the bridge and continued upstream. They grew smaller. They were gone. The Papallacta roared. The light was fading. It was damp and chilly. We headed back to Guango where we knew a glowing wood stove awaited us.

Posted in Ecuador | 1 Comment

Broken glass falls in the forest

Broken glass falls in the forest
and from green dreams we wake to song.
Dark eyes unseen pierce our night
to watch us stumble out of nakedness
into day. Slowly,
we perceive their glances.

We shove off rough covers,
abrading the skin of our sleep,
and from our beds we step to feel
rhythm in these hewn floors.

Unclear echoes from dawn mirrors
meet us, pounding the shapes
of our congruities. And silent,
in reflection, we let down our hair,
each strand to notify our spines of flesh and light.

It is the 50th anniversary of a trip from July 4 to 13, 1970, I made with Edgar B. Kincaid, Jr., Nancy McGowan, Jim Pruitt, Fred and Marie Webster, and others to Rancho del Cielo cloud forest in Tamaulipas, Mexico. I first went to Mexico with my parents in 1960. But Rancho del Cielo was the first of many birding trips I have made to Mexico and other counties in the New World Tropics with Edgar, until he died in 1985, David, and my other beloved birding friends. The trips continue, the most recent to Ecuador in February 2020. I wrote this poem shortly after the Tamaulipas trip. I first heard the cascading crystal song of the Brown-backed Solitaire singing at Rancho del Cielo. Fifty years later, I continue to hear it singing around Alamos, Sonora, and throughout Mexico.

Posted in Mexico, The Occasional Poem

Fix It

Update: On Monday, June 15, 2020, the Supreme Court declined to hear any of the qualified immunity cases pending before the court. On Wednesday, June 17, 2020, MinnPost published a version of this blog post in “Community Voices”:  Fix It

The federal Civil Rights Act of 1871, also known as the Ku Klux Klan Act, was passed to combat atrocities of the Ku Klux Klan and other white supremacy groups in the aftermath of the Civil War. It was signed into law by President Ulysses S. Grant on April 20, 1871. The act gave the president the power to suspend the writ of habeas corpus. Grant used this authority during his presidency. Because of the specific provisions in the Civil Rights Act, and Grant’s robust enforcement of them, the first-generation KKK was quashed and did not rise up again until the Jim Crow era of the early 20th century. The act remains largely unchanged but has been subject to much interpretation by the courts.

Perhaps the act’s single most important provision was codified into federal law as 42 U.S.C. §1983, Civil Action for Deprivation of Rights, which reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured….

In other words, if an agent of state government, such as a county sheriff or municipal police officer, acting in his or her official capacity (i.e., on duty, wearing a uniform, using agency equipment such as a gun) violates an individual’s constitutional rights that person can sue for redress and the offending person is liable to the injured party – or to the party’s family if he or she was killed, which seems to happen all too frequently.

The statute embodies a fundamental constitutional tenet: where there is a right, there must be a remedy. The statute is designed to prevent rogue behavior of state-level agents from violating an individual’s federal constitutional rights under the pretext of “doing their job.” It seems simple and just. Nothing is simple and a lot of things are unjust.

From the viewpoint of the defendant (the person who allegedly violated a person’s constitutional rights) as well as in certain cases the agency he or she represents, a great deal is at stake. One of these is the real possibility of fending off frivolous lawsuits. But two issues loom larger:

Number 1: A lot of money for legal fees and compensation. In 2019 the City of Minneapolis agreed to pay $20 million to the family of Justine Ruszczyk for her wrongful death by a police officer in 2017. However, defendants are largely indemnified by their agencies and agencies in turn have liability insurance. So, in reality, no person or governmental entity goes bankrupt in the course of paying legal fees or compensation. I assume we taxpayers foot the bill for the insurance premiums.

Number 2: Possible conviction of the defendant for his or her crime, which goes with, I believe, loss of perceived power and honor. Historically police officers have been held in high esteem in our culture, while a portion of the people they pursue – alleged drug dealers, members of the Mafia, people of color, especially African-American males – are not. That imbalance of power appears to be rapidly changing.

Over the years – in large measure to address the balance or imbalance of power between defendant and plaintiff – 42 U.S.C § 1983 has been altered through Supreme Court decisions.

The most significant change came in the 1967 Supreme Court case Pierson v. Ray with the introduction of qualified immunity as a defense in Section 1983 cases. The petitioners in the case were a group of white and black clergymen on a prayer pilgrimage to promote racial integration, who were attempting to use a segregated interstate bus terminal waiting room in Jackson, Mississippi in 1961. In an 8 to 1 vote, the justices argued that the officials – Mississippi police officers who arrested the clergy on grounds of breaching the peace – while committing constitutional violations were acting in “good faith” and therefore could raise a “qualified immunity” defense. Justice Earl Warren wrote the majority opinion. William O. Douglas cast the lone dissenting vote.

One might say that Justice Warren and his colleagues minus one hammered the first nail into the coffin of civil action for deprivation of rights.

Four decades later, the 2009 Supreme Court case Pearson v. Callahan continued to address the balance of powers between defendant and plaintiff. In this unanimous decision by the Roberts court, the justices wrote, “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” In this case, centering on Fourth Amendment protections of unreasonable search and seizure, an informant of Central Utah Narcotics Task Force, wearing a wire, entered the home of an alleged methamphetamine dealer to buy some meth. With completion of the purchase, his colleagues on the Task Force entered the home to conduct a search without a warrant. The case buffeted from the Utah Court of Appeals, to the U.S. District Court for Utah, to the U.S. Court of Appeals for the 10th Circuit and finally to the Supreme Court. A host of judges pondered whether or not an arcane consent-once-removed doctrine pertaining to searches protected the actions of the Task Force. The Supreme Court justices ultimately determined that at the time of the Task Force’s entry it was not clearly established that consent-once-removed violated the Fourth Amendment; therefore qualified immunity shielded the officers.

A group of white and black clergymen in a segregated bus station in midst of the Civil Rights Movement and a methamphetamine dealer plying his illicit trade during the height of the methamphetamine crisis have very little in common – except their constitutional rights, as guaranteed variously in the First, Fourth, and Fourteenth Amendments, were violated but not redressed because of the powerful cultural benefit-of-the-doubt embedded in qualified immunity that resonates loudly in courts of law with regard to public law enforcement officers.

And here we are. George Floyd is dead. As are recently Manuel Ellis (March 3, Tacoma, Washington), Breonna Taylor (March 13, Louisville, Kentucky), Mike Ramos (April 24, Austin, Texas), and Dreasjon “Sean” Reed (May 6, Indianapolis, Indiana). It is a deeply painful irony that a provision in the 1871 Civil Rights Act designed to protect African Americans from acts of violence perpetrated by the Ku Klux Klan in the guise of local law enforcement has been subverted by court decisions to protect law enforcement officers in no guise at all from killing African Americans.

Of all the justified calls for change being made now as people continue to peacefully protest around the world, should not one of these pleas be to address the gross inequity of qualified immunity?

There are rumblings. In 2018, Evan Bernick, a member of the Federalist Society and currently a law clerk for Judge Diane S. Sykes of the U.S. Court of Appeals for the 7th Circuit, wrote an article when he was a visiting lecturer at Georgetown University Law Center entitled “It’s Time to Limit Qualified Immunity.” https://www.law.georgetown.edu/public-policy-journal/blog/its-time-to-limit-qualified-immunity/

He clearly explains in a way that even a non-lawyer can understand how Section 1983 has been eviscerated by the Supreme Court, why a growing number of legal scholars question the Court’s logic in its decisions, and how the current perversity of qualified immunity could be remedied. Basically, there are two recourses. Either Congress, which has never passed legislation related to qualified immunity, could amend Section 1983 to, in his words, “take aim at the Court’s various departures from its original meaning.” Or the Supreme Court could, as he wrote, “retreat from its more sweeping statements concerning qualified immunity – disavowing, for instance, the proposition that officials must be ‘plainly incompetent or…knowingly violate the law’ before they are denied qualified immunity” [from 1986 Malley v. Briggs, a case involving the plaintiff’s alleged possession of marijuana]. “Plainly incompetent” is the bar set by the justices? That’s a punch in the gut.

At the time he wrote the article, Bernick was not particularly optimistic that change would come. “The political and doctrinal impediments to doing so are substantial, but that doesn’t make the constitutional problems that qualified immunity creates or the practical impact that qualified immunity has on a person’s rights any less severe.” However, in the last few years there seems to be a growing consensus across the political spectrum that qualified immunity decisions have gone too far.

Currently, and coincidentally to current events surrounding the killing of George Floyd, there are nine qualified immunity petitions pending before the Supreme Court. The cases are listed at the end of this article, but here is a sampling with the salient issues as summarized by scotus.blog:

In West v. Winfield, the issue, which goes to the heart of the case without further details, is “Whether an officer who has consent to ‘get inside’ a house but instead destroys it from the outside is entitled to qualified immunity…”

Baxter v. Bracey is a case involving a police office who unleashed a police dog to apprehend a suspect who had already surrendered. The issue in part is “…whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background, and which has been shown not to serve its intended policy goals, should be narrowed or abolished.” It is of note that 10 organizations that would ordinarily be disinclined to get in bed together have filed a friend of the court brief on behalf of the plaintiff entitled “Brief of Cross-ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law.”

Anderson v. the City of Minneapolis is a heartrending case that is close to home. It involves first responders who discovered a missing college student along the Mississippi River apparently frozen. They took his vitals and declared him dead at the scene instead of following protocol that calls for warming the body. (The medical rule is that a person in this state is not dead until he or she is warm and dead.) The issues here are 1) “Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff…or whether it should be placed on the defendant…”, 2) “…whether, under the state-created-danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead…”, and 3) “…whether the 8th Circuit erred in dismissing this state-created-danger case on qualified immunity grounds.”

Assuming the Supreme Court agrees to hear some or all of the pending qualified immunity cases, we shall see how they rule.

In any case, now should be the golden moment for Senator Amy Klobuchar, Senator Tina Smith, and the Minnesota Congressional Delegation (at least the Democrats) to seize the opportunity to introduce legislation to repeal or revise the doctrine of qualified immunity. I know they have their hands full, but I would think Governor Tim Walz, Mayors Jacob Frey and Melvin Carter, and the Minnesota Mayors Association would be clamoring for changing the current power of qualified immunity.

Representative Justin Amash, Libertarian from Michigan, beat them to it. In early June he introduced H.R. 7085 Ending Qualified Immunity Act. To date, Representative Ilhan Omar is the only member of the Minnesota delegation to sign on as a co-sponsor. Perhaps Klobuchar et al. have something up their sleeve that a mere citizen like me is not privy to, but there is something oddly disquieting and sad to me that Minnesota’s political leaders are not owning this issue.

In the last week, this is what I have learned so far about the doctrine of qualified immunity, a legal term I had never heard of before. I twist like a flag in the wind between cautious optimism and despair that the Supreme Court or Congress will fix it.

Addendum: Here are the nine of the petitions pending before the Supreme Court: McDermott Will & Emery partner Paul Hughes (Zadeh v. Robinson; Corbitt v. Vickers), Scott Michelman of ACLU (Baxter v. Bracey); Tillman Breckenridge of Breckenridge (Brennan v. Dawson); Marcelyn Stepanski of Rosati Schultz Joppich & Amtsbuechler (Dawson v. Brennan); Erwin Chemerinsky, University of California Berkeley School of Law (Anderson v. City of Minneapolis); Robert McNamara, Institute of Justice (West v. Winfield); Jeffery Speer of Doucet Speer, Lafayette, Louisiana (Mason v. Faul); and James Jeffrey of Arlington, Texas (Hunter v. Cole).and subsequent peaceful protest But there are glimmers of hope.

Posted in Qualified Immunity