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Ron Kiczenski vs
  the US Attorney General, the Drug Enforcement Agency Director, the Secretary of Defense, the Director of Homeland Security, the Secretary of the Interior, and any other Executive Branch administrators of Federal Law regarding cannabis.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
 
RON KICZENSKI,
Plaintiff,
 
v.
 
 
JOHN ASHCROFT, et al.,
Defendants
CIV S - 03 - 2305 - MCE - GGH - PS
 
 
 
PLAINTIFF'S RESPONSE TO DEFENDANT'S RESPONSE TO
PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS.
 
I Ron Kiczenski do hereby submit the following declaration/brief in response to the defendants March 16, 2006, response to my objections to the February 24, 2006, Magistrate Judges Findings and Recommendations, and I do swear the following is true and accurate to the best of my knowledge and belief and upon said knowledge and belief and at risk of the penalty for perjury in this Federal District, I ask the court to allow for and consider this document to be whatever it needs to be in title in order to have the fullest impact on the considerations of this court.
 
THE YODER TEST WORKS TO SUBSTANTIATE PLAINTIFF'S CLAIMS, NOT DEFENDANT'S POSITIONS AS DEFENDANTS RESPONSE SEEMS TO TRY AND REPRESENT
 
As the defendants response cited, the Yoder decision states;
 
"We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school-attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, 6 the very concept of ordered liberty precludes [406 U.S. 205, 216] allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. "
 
In this restricted by formal and higher education forum, I have presented in every way that I know how that my religious/spiritual knowledge, belief, and practices and intended practices are sincere, deeply rooted and long held, and that my own 'church' in my garden was realized even as a child. In fact, this test is even more to the point of direct and substantial burden on ones free exercise than Yoder is in that it goes to question the prohibition of even the construction of my church as instructed to me by god, and goes even so far as to deny the very necessarily dictated sustenance that god will provide to give the very breath of life to my family and I in return, a life and death issue, where as the Yoder case was a public school issue and had no baring on the ability of Yoder to actual stay alive by dependence on the in common food gifts from god and how to use them in accordance with the Amish doctrine. These facts should leave no question that my religious faith and mode of life are inseparable and interdependent.
 
I have clearly shown this court that in no way is the life style of my necessary intended religious practice based on a personal choice after an "evaluation and rejection of the contemporary secular values accepted by the majority". Far in unavoidable conclusion to the contrary, I have shown this court that my awakening to my direct relationship to god and how that effects my necessary life style began as a child and well before I knew anything at all about politics, economics, philosophy or even what secular means, all I knew was that god had reveled and communicated plainly with me what my church was without exception to be.
 
I have explained to this court that while god was instructing me from our families garden as a child, so to was my parochial schooling and Alter boy training in the Catholic church teaching me corroborating bible scriptures which clearly and unequivocally established gods own created first and original 'church' of humans as a garden, the garden of Eden, such as;
 
GENESIS,
"2:8 And the Lord God planted a garden eastward, in Eden; and there He put the man whom He had formed."
"2:15 And the Lord God took the man, and put him into the garden of Eden to dress it and to keep it. "
"2:16 And the Lord God commanded the man, saying: 'Of every tree of the garden thou mayest freely eat;"
 
I have explained in every way I know how that my religious knowledge, belief, and practices are rooted in commonality with every religion and or spiritual belief I know of even from the dawn of humankind and are in no way odd or out of the ordinary in regards to the natural gifts we inherit as a matter of birth and the different ways folks are guided by their particular doctrines to share or use those god given commonalities.
 
I have presented this court with ample statements and supporting exhibits of the long and exhaustive history of attempts I have made to remedy this impossible burden on the way that I must live according to god and how the CSA and its continued and growing threat effects me as nothing less then religious persecution and has done and continues to do irreparable harm, and that has by the stress and nutrition factors alone already has shortened mine and my children's natural god intended life spans and quality of such.
 
The Yoder decision goes on to state;
 
"Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, "be not conformed to this world . . . ." This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.
The record shows that the respondents' religious beliefs and attitude toward life, family, and home have remained constant - perhaps some would say static - in a period of unparalleled progress in human knowledge generally and great changes in education. 7 The respondents [406 U.S. 205, 217] freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call "life style" have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and "worldly" influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical. "
 
Yoder also goes on to state;
 
"The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U.S. 599, 605 (1961). Nor is the impact of the compulsory-attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region. 9 [406 U.S. 205, 219] "
 
Even more severe than in the Yoder case,
The impact of the law on my practice of my religion is not only severe, but reaches right to the very root of my religious practice and seeks to extinguish it, and to which the effects on me and my children are inescapable, for the CSA affirmatively compels me, under threat of even cruel and unusual criminal sanction, to perform acts undeniably at odds with fundamental tenets of my religious beliefs, not the least of which would be to take part in the killing/eradication/extinction of the spirit of god in cannabis form. The CSA carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent as was recently demonstrated in Gonzalez v. O Centro Espirita etc case. Further, it would be completely out of step with the most basic principles of every religion I've ever heard of, as well as bible scripture and just plain logic to hold a standard that provides for the free exercise to use and teach your children the sacred and sacramental use of hallucinogenic tea, yet not provide for the equal standard to be applied to a religious activity of the same or greater weight and that goes to feeding and clothing ones children.
 
 
The following position presented and apparently held by the defendant shows without a doubt and unequivocally on its face that the defendant is not only unqualified to state such, and prohibited by the First Amendment from even making a conclusion of such a nature, but it goes to clearly show the defendants total lack of any reasonable understanding of what religion is, the defendant's response states that;
 
"plaintiff attempts to convert everything he does in his life, such as feeding and clothing his family, into a moral, ethical and religious mandate from god. Common everyday activities in life performed by every person, such as feeding and clothing one's family, however, are not essentially moral and ethical matters,"...
A. I have not 'converted, and need not 'convert' what I do in life "such as feeding and clothing" my "family, into a moral, ethical and religious mandate from god.", they are already as such and were born from such, and the defendants desperate attempt to convert such into "secular, economic, social and political" beliefs are clearly based in a suspicious reach for a convenient argument in their own defense while it attempts to establish my religion for me in perfect and irreconcilable conflict with the First Amendment.
 
B. "feeding and clothing one's family, however, are not essentially moral and ethical matters,"... This kind of long settled and in error devolved logic of the defendant is not only a denial of the fundamental truths of my religion, but in kind, offends all other known religions I am aware of equally to the core. In fact the statement itself is so unrealistic and bald faced illogical that one might conclude that the defendants are engaged in some sort of religious cleansing efforts. Whatever the defendants motivation may be in taking this oddly obviously mistaken position, it is clear that it is in direct conflict with the Yoder decision as well as the Welsh held logic and fails those tests ashamedly.
 
C. Defendants position that "feeding and clothing one's family, however, are not essentially moral and ethical matters,"... even miserably fails The Gandhi test;
"During his childhood, Gandhi's family practiced Vaishnavism, but he was also exposed to Jainism. While in England studying law, he was introduced to Theosophy and Christianity. He did not realize his sentimental bond to Hinduism until his Hinduism was challenged by Christian missionaries in South Africa. Gandhi had read the Bhagavad Gita in an English translation in England, but it did not become his "spiritual dictionary" [6, 14] until he read several different translations of it in South Africa. Reading the Bhagavad Gita reinforced Gandhi's connection to Hinduism. Gandhi eventually became "one of the greatest innovators in the history of Hinduism." [6, 17] His Hinduism revolved around "a few fundamental beliefs: in the supreme reality of God, the unity of all life, and the value of ahimsa as a means of realizing God." [6, 17]
With these as his central beliefs, it is easy to see how Gandhi was able to find an underlying unity in all the world's religions. While in South Africa, Gandhi undertook a comparative study of religions, which gave rise to the all-embracing nature of his religious outlook. He had faith that "religions are different roads converging to the same point." [3, 27] To Gandhi, "the various religions were 'as so many leaves of a tree'; they might seem different but 'at the trunk they are one.'" [6, 21] He had confidence in "the absolute oneness of God and therefore of humanity." Based on this, he believed, "We have but one soul. The rays of the sun are many through refraction. But they have the same source." [1, 198]
 
 
Because he saw all religions as essentially the same, he advocated "mutual tolerance and respect between different religions" [6, 23] Gandhi "insisted that the function of religion was to unite rather than divide people." [6, 11] Because of this belief, Gandhi was deeply distraught by the religious conflict between Hindus and Muslims in India. He contended, "In reality, there are as many religions as there are individuals, but those who are conscious of the spirit of nationality do not interfere with one another's religion…The Hindus, The Mahomedans, the Parsis, and the Christians…will have to live in unity." [3, 26]
 
Gandhi believed that religion must be applied to everyday life. To him, religion was "an ethical framework for the conduct of daily life." [6, 24] "He did not know… any religion apart from human activity; the spiritual law did not work in a vacuum but in the ordinary activities of life; religion which took no account of practical problems and did not help to solve them was no religion." [6, 19] Within his own life, Gandhi "endeavored to enforce the teachings of the Gita…[and came] to the conclusion that perfect renunciation was impossible without perfect observance of ahimsa in every shape and form." [6, 14]
 
For Gandhi, applying religion to daily life necessitated applying religion to politics as well. Many people criticized Gandhi for mixing religion and politics, however, these critics did not fully understand what Gandhi meant by religion: "It is not the Hindu religion, which I certainly prize above all other religions, but the religion which transcends Hinduism, which changes one's very nature, which binds one indissolubly to the truth within and which ever purifies. It is the permanent element in human nature which…leaves the soul restless until it has found itself." [6, 24]
 
 
Gandhi's religious philosophy is essentially what Leibniz called the Perennial Philosophy. In the introduction to The Essential Gandhi, the Perennial Philosophy is characterized as follows:
 
"First, underlying everything in the phenomenal world is a changeless reality, which most religions call God. Second, this changeless reality is present in every living creature and can be personally discovered by following certain strenuous disciplines that remove the layers of conditioning that cover it. And third, this discovery is the real goal of life. Whatever else we may accomplish, nothing will satisfy us until we realize God in our own consciousness." [1, xviii]"
 
"A religion that takes no account of practical affairs and does not help to solve them is no religion. "
Mohandas Gandhi
 
"Each one prays to God according to his own light."
Mohandas Gandhi
 
"Religion is more than life. Remember that his own religion is the truest to every man even if it stands low in the scales of philosophical comparison. "
Mohandas Gandhi
 
"The essence of all religions is one. Only their approaches are different."
Mohandas Gandhi
 
"Those who say religion has nothing to do with politics do not know what religion is."
Mohandas Gandhi
 
"An ounce of practice is worth more than tons of preaching."
Mohandas Gandhi
 
"I claim that human mind or human society is not divided into watertight compartments called social, political and religious. All act and react upon one another."
Mohandas Gandhi
 
"My religion is based on truth and non-violence. Truth is my God. Non-violence is the means of realising Him."
Mohandas Gandhi
 
"One's own religion is after all a matter between oneself and one's Maker and no one else's."
Mohandas Gandhi
 
 

Above excerpts from, http://www.wildewildeweb.com/gandhi/index.html

 

 

The defendant also try's to say that the logic used in the Welsh decision has no applicability in this case because it "involved the interpretation 6(j) of the Universal Military Training and Service Act, and was not a First Amendment or RFRA case" fails on its face as the Yoder case was not a conscientious objector case yet Welsh was clearly referenced and used in the formulation of that outcome.
 
The defendant's mistaken notion that the logic used in formulating the Welsh decision has no possible applicability here, is simply based on semantics and a basic training to say anything true or not and no matter how misleading in their own defense, just as defendants contention that the RLUIPA, though it works against me in every way as a land use regulation, cannot be considered because the CSA is not a land use regulation in its official title only. The defendants mistaken conclusions on this actions ability to meet the requirements of RFRA and RLUIPA should be rejected.
 
 
Later Yoder states;
 
"This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. 20 The record is to the contrary, and any reliance on that theory would find no support in the evidence."
 
 
As I cited in the request and as an attached exhibit to my initial request for a TRO in this action{oct.2003}, this excerpt from the DEA's own Administrative law judge should go to help satisfy the needs of this court in determining the claimed compelling interest of the defendants in the total void of any showing on their part of any evidence of a compelling interest built from some threat to public safety or national security etc...{could it be that in part the defendants and now the Magistrate Judge have both mistaken my showings and statements going to argue that the defendants have an absence of compelling interest/national security, for imposing such burdens on me, as beliefs rooted in political, economic, philosophic or something other than religious.?}. please note that the following references by Judge Young go to address the varieties of viable THC producing cannabis and cannot possibly be referencing the cannabis hemp sub specie variety at specific issue in this case because,
 
1. it could not be used as medicine in the sense of a drug at any stage of growth.
 
2. it has still not been verified through proper taxonomic testing that it is or even could ever viably contain or produce the plant drug defendants are trying to regulate under the CSA. The defendant just proclaims out of thin air that the plant varieties are identical and that cannabis is all the same with no sub specie varieties.
 
UNITED STATES DEPARTMENT OF JUSTICE
Drug Enforcement Administration
 
In The Matter Of
MARIJUANA RESCHEDULING PETITION
Docket No. 86-22
OPINION AND RECOMMENDED RULING, FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION OF ADMINISTRATIVE LAW JUDGE FRANCIS L. YOUNG, Administrative Law Judge
 
DATED: SEPTEMBER 6, 1988
 
"Discussion
 
Based upon the rationale set out in pages 26 to 34, above, the
administrative law judge concludes that, within the meaning of the Act, 21 U.S.C. § 812(b)(2)(B), marijuana "has a currently accepted medical use in treatment in the United States" for spasticity resulting from multiple sclerosis and other causes. It would be unreasonable, arbitrary and capricious to find otherwise. The facts set out above, uncontroverted by
the Agency, establish beyond question that some doctors in the United States accept marijuana as helpful in such treatment for some patients.
 
The record here shows that they constitute a significant minority of physicians. Nothing more can reasonably be required. That some doctors would have more studies and test results in hand before accepting marijuana's usefulness here is irrelevant.
 
The same is true with respect to the hyperparathyroidism from which Irvin Rosenfeld suffers. His disease is so rare, and so few physicians appear to be familiar with it, that acceptance by one doctor of marijuana as being useful in treating it ought to satisfy the requirement for a significant minority. The Agency points to no evidence of record tending to establish that marijuana is not accepted by doctors in connection with this most unusual ailment.
 
   
Refusal to acknowledge acceptance by a significant minority, in light of the case history detailed in this record, would be unreasonable, arbitrary and capricious.
 
VIII.
 
ACCEPTED SAFETY FOR USE UNDER MEDICAL SUPERVISION
 
With respect to whether or not there is "a lack of accepted safety
for use of [marijuana] under medical supervision", the record shows the
following facts to be uncontroverted.
 
 
Findings of Fact
 
1. Richard J. Gralla, M.D., an oncologist and Professor of
Medicine who was an Agency witness, accepts that in treating cancer
patients oncologists can use the cannabinoids with safety despite their
side effects.
 
2. Andrew T. Weil, M.D., who now practices medicine in Tucson,
Arizona and is on the faculty of the College of Medicine, University of
Arizona, was a member of the first team of researchers to perform a
Federal Government authorized study into the effects of marijuana on
human subjects. This team made its study in 1968. These researchers
determined that marijuana could be safely used under medical supervision.
In the 20 years since then Dr. Weil has seen no information that would
cause him to reconsider that conclusion. There is no question in his
mind but that marijuana is safe for use under appropriate medical
supervision.
 
3. The most obvious concern when dealing with drug safety is
the possibility of lethal effects. Can the drug cause death?
 
4. Nearly all medicines have toxic, potentially lethal
effects. But marijuana is not such a substance. There is no record in
the extensive medical literature describing a proven, documented
cannabis-induced fatality.
 
- 56 -
 
5. This is a remarkable statement. First, the record on
marijuana encompasses 5,000 years of human experience. Second, marijuana
is now used daily by enormous numbers of people throughout the world.
Estimates suggest that from twenty million to fifty million Americans
routinely, albeit illegally, smoke marijuana without the benefit of
direct medical supervision. Yet, despite this long history of use and
the extraordinarily high numbers of social smokers, there are simply no
credible medical reports to suggest that consuming marijuana has caused a
single death.
 
6. By contrast aspirin, a commonly used, over-the-counter
medicine, causes hundreds of deaths each year.
 
7. Drugs used in medicine are routinely given what is called
an LD-50. The LD-50 rating indicates at what dosage fifty percent of
test animals receiving a drug will die as a result of drug induced
toxicity. A number of researchers have attempted to determine
marijuana's LD-50 rating in test animals, without success. Simply
stated, researchers have been unable to give animals enough marijuana to
induce death.
 
8. At present it is estimated that marijuana's LD-50 is around
1:20,000 or 1:40,000. In layman terms this means that in order to induce
death a marijuana smoker would have to consume 20,000 to 40,000 times as
much marijuana as is contained in one marijuana cigarette. NIDA-supplied
marijuana cigarettes weigh approximately .9 grams. A smoker would
theoretically have to consume nearly 1,500 pounds of marijuana within
about fifteen minutes to induce a lethal response.
 
9. In practical terms, marijuana cannot induce a lethal
response as a result of drug-related toxicity.
 
- 57 -
 
10. Another common medical way to determine drug safety is
called the therapeutic ratio. This ratio defines the difference between
a therapeutically effective dose and a dose which is capable of inducing
adverse effects.
 
11. A commonly used over-the-counter product like aspirin has a
therapeutic ratio of around 1:20. Two aspirins are the recommended dose
for adult patients. Twenty times this dose, forty aspirins, may cause a
lethal reaction in some patients, and will almost certainly cause gross
injury to the digestive system, including extensive internal bleeding.
 
12. The therapeutic ratio for prescribed drugs is commonly
around 1:10 or lower. Valium, a commonly used prescriptive drug, may
cause very serious biological damage if patients use ten times the
recommended (therapeutic) dose.
 
13. There are, of course, prescriptive drugs which have much
lower therapeutic ratios. Many of the drugs used to treat patients with
cancer, glaucoma and multiple sclerosis are highly toxic. The
therapeutic ratio of some of the drugs used in antineoplastic therapies,
for example, are regarded as extremely toxic poisons with therapeutic
ratios that may fall below 1:1.5. These drugs also have very low LD-50
ratios and can result in toxic, even lethal reactions, while being
properly employed.
 
14. By contrast, marijuana's therapeutic ratio, like its LD-50,
is impossible to quantify because it is so high.
 
15. In strict medical terms marijuana is far safer than many
foods we commonly consume. For example, eating ten raw potatoes can
result in a toxic response. By comparison, it is physically impossible
to eat enough marijuana to induce death.
 
16. Marijuana, in its natural form, is one of the safest
therapeuticallyactive substances known to man. By any measure of rational analysis
marijuana can be safely used within a supervised routine of medical care."
 
Attached to the request for a TRO in October 2003, are fifty exhibits that all go to corroborate that if the defendants were tested on compelling interest as prescribed by RFRA and or RLUIPA, it will show that they fail to meet their burden as it applies to this case.
 
An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.
Mohandas Gandhi
 
DO TO THE EXTRA SENSITIVE NATURE OF THE FOLLOWING, AND THE POSIBLE NEGATIVE RIPPLE EFFECT IT MIGHT HAVE ON MYSELF AND MY FAMILY, I ASK THAT THE COURT CONSIDER THE FOLLOWING IN ONLY THE FORMAL COMPLETE RECORD OF THIS CASE, BUT OMITT IT FROM THE PUBLICLY ACCESABLE RECORD IF POSSIBLE
I suffer greatly in discussing these personal religious matters in these religious terms because inherent in that very context is a kind of inevitable misconception of separatism and other language barrier misinterpretations that folks the world over seem to walk away with when discussing such matters, and as such run in contrary to my doctrine to celebrate and share the commonalities of folks and all life forms and therein a birth of the ability to understand differences as the necessary diversity of life rather then fearing and exploiting folks commonalities and differences and creating more unnecessary disconnect/separatist related suffering. For mostly these reasons I have tried to be as delicate and nonspecific as possible up to now in describing my communications/relationship with, and existence as god.
 
 
CONCLUSION
 
Again I ask and pray this court to grant me, the plaintiff, permanent injunctive relief from defendants unconstitutional, unwarranted, discriminating and fatally substantial burden on the free exercise of my religion, and their eminent attack therein.
 
For all the foregoing reasons and including plaintiffs filed objections to the Magistrates Findings and Recommendations, and including all the documents of record incorporated therein, I ask that the court not adopt the Magistrates Findings and Recommendations, and instead rightly set this matter for trial on the RFRA, RLUIPA, and First Amendment issues of the defendants burden for showing sufficient compelling interest, and if so, are they implementing the least restrictive measures in attempting to accomplish the compelling interest.
 
Or if the court sees fit, to grant summary judgment in favor of the plaintiff based on the ample record that exists and the total failure on the defendants part to contradict such, and in the total absence of their showing any information to substantiate their untested assumption of compelling interest.
 
 
Respectfully submitted on this day of March 21, 2006 by plaintiff, March 21, 2006
Ron Kiczenski

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