Arevalo (Jesus) v. Dist. Ct. (State)

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person has been prosecuted for violating a statute and the district court

has ruled on the constitutionality or validity of the statute. NRS

34.020(3); Zarnarripa, 103 Nev. at 640, 747 P.2d at 1387. "Statutes are

presumed to be valid, and the burden is on the challenger to make a clear

showing of their unconstitutionality." Childs ix State, 107 Nev. 584, 587,

816 P.2d 1079, 1081 (1991).

Arevalo's sole basis for his challenge to the constitutionality of

the statutes is that the conduct for which he was convicted was protected

speech under the First Amendment.' We conclude that Arevalo's conduct,

which included obscenities and threats to the victim, was not protected by

the First Amendment. 2 See Cantwell v. Connecticut, 310 U.S. 296, 309-10

(1940) ("Resort to epithets or personal abuse is not in any proper sense

communication of information or opinion safeguarded by the Constitution,

and its punishment as a criminal act would raise no question under that

instrument."); Watts v. United States, 394 U.S. 705, 707-08 (1969) (holding

that a true threat of violence to another person is not protected speech);

Ford v. State, 127 Nev., Adv. Op. 55, 262 P.3d 1123, 1130 (2011) ("Speech

lArevalo makes no challenge to the language of the statutes of conviction and provides no argument that the statutes are unconstitutionally vague or overbroad.

2 The record shows that Arevalo approached the victim who was sitting on a bench in a church courtyard, accused him of hurting Arevalo's son, took off his shirt and threw it to the ground, screamed obscenities at the victim, challenged him to a fight, and threatened to harm him both then and in the future.

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integral to criminal conduct, such as fighting words, threats, and

solicitations, remain categorically outside [the First Amendment's]

protection." (quoting United States v. White, 610 F.3d 956, 960 (7th Cir.

2010))).

Arevalo appears to contend that an inquiry into the subjective

state of mind of both the defendant and the victim is necessary to

determine whether the defendant made "true threats." To the extent that

Arevalo relies on Elonis v. United States, 575 U.S. , 135 S. Ct. 2001

(2015), his reliance is misplaced. The Elonis decision, which involved a

criminal statute that lacked a mental state requirement for the defendant,

held that criminal liability could not be imposed merely because a

reasonable person would have perceived a communication as a threat;

rather, the defendant must have intended to issue the threat or known

that the communication would be viewed as a threat. 575 U.S. at , 135

S. Ct. at 2012. Here, unlike in Elonis, both of the statutes, NRS

200.571(1) (harassment) and NRS 203.010 (breach of peace), contain a

mental state requirement and thus Arevalo's convictions for harassment

and breach of peace took into consideration his subjective state of mind.

The Elonis decision does not require an inquiry into the subjective mind of

the victim, and such an inquiry would not have helped Arevalo, as the

victim testified that he was scared of Arevalo, he knew that Arevalo was a

police officer and often carried a gun, he called 911 during the incident,

and he took protective measures after the incident based on Arevalo's

threats.

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Having considered his petition and concluded that Arevalo

fails to demonstrate that the statutes were unconstitutionally applied, we

ORDER the petition DENIED. 3

J. Gibbons

J. Pickering

cc: Hon. Rob Bare, District Judge Chesnoff & Schonfeld Attorney General/Carson City Las Vegas City Attorney Las Vegas City Attorney/Criminal Division Clark County District Attorney Eighth District Court Clerk

In light of this disposition, we deny as moot Arevalo's motion for 3 transmission of original exhibits and motion for stay.

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