Arevalo (Jesus) v. Dist. Ct. (State) ( 2015 )

 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.
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
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transmission of original exhibits and motion for stay.
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