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. 

2The 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. 

SUPREME COURT 

OF 

NEVADA 2 

(0) I94Th eDapF 
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. 

SUPREME Courrr 

OF 

NEVADA 3 

(0) 1947A ce, 
Having considered his petition and concluded that Arevalo 

fails to demonstrate that the statutes were unconstitutionally applied, we 

ORDER the petition DENIED. 3 

Gibbons 

J. 

J. 

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 

3In light of this disposition, we deny as moot Arevalo's motion for 

transmission of original exhibits and motion for stay. 

SUPREME COURT 

OF 

NEVADA 4 

(0) 1947A e