With respect to Mr.
Afernandes
2

With respect to Mr. Guimaraes, thank you for asking the question. As it happens, I was a criminal prosecutor in the state of Indiana for a few years. Let’s deal with Lochte’s teammates first. To start, if the evidence warranted it, we would actually charge someone with a crime. In the U.S., all prosecution of criminal acts requires that the perpetrator knowingly committed a criminal act. Witnessing a criminal act is not a crime in the U.S., so your hypothetical Brazilian kid’s friends would not be subject to prosecution at all, unless it was for being drunk in public, which in Indiana, anyway, is the equivalent of a traffic ticket. There is no law in the State or Federal system, to my knowledge, that would allow authorities to stop a potential witness to a criminal act from returning to his home country, unless he or she witnessed an act of terrorism or a violent felony, and even then it would be highly unlikely.

In the case of Lochte’s conduct, let’s examine the facts. Say a Brazilian kid came here and tore up a gas station. In Indiana, anyway, the damage would have to be excessive to warrant anything more than a misdemeanor charge (by excessive, I mean that I once charged a guy with felony criminal mischief because he went into the house his estranged wife was renting and spray painted every surface, kicked huge holes in dry wall in every room, tore the sink off the wall, cut the phone lines and smashed out all the windows — that’s the only felony vandalism case I can recall and he still didn’t go to jail, although I tried). As a misdemeanor, provided the kid didn’t have a felony record, he would most likely get a 30-day suspended sentence, be ordered to pay restitution and have to do 40 or so hours of community service.

As it happens, I was a Prosecutor in South Bend, the home of the University of Notre Dame. I can’t tell you the number of times I prosecuted foreign students for public intoxication, shoplifting, vandalism, fighting, etc. I also prosecuted some of the biggest names in college football in the 1990’s for most of the same stuff. Never once did I consider, nor would it be legal in Indiana, for me to try to take their passports. Our procedure was to issue a summons for the offender and require him or her to appear in court at some future date. And remember, the American swimmers weren’t even charged with a crime.

Conversely, if a security guard at a gas station, any gas station, held anyone at gunpoint and demanded restitution on the spot for an alleged criminal mischief (vandalism), it would be considered armed robbery, a Level 3 Felony, punishable by 3 to 16 years in prison and a fine of up to $10K (just about the equivalent of the “donation” the American swimmers were “advised” to pay). In Indiana, anyway, he or she would probably also be charged with False Imprisonment, which is a misdemeanor, or Kidnapping, depending on the circumstances, which is a Felony. In addition, in the U.S., the store owner and the owner of the cab company could be liable for civil damages under the theory of Respondeat Superior (agency) for failure to call the police when witnessing a felony being committed.

The point is that in the U.S., we would take the gun incident far, far more seriously than the vandalism. Rightly or not, we just don’t take vandalism that seriously. It’s a property crime and we don’t support the defense of property with potentially deadly force, especially in a public or commercial facility where there’s the potential for innocent bystanders to be hurt.

Hope that answers the question.

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