(concurring in part; dissenting in part).
I agree with the majority’s opinion in all respects except as regards its interpretation of the coverage of 18 U.S.C. § 242. See Part II at pp. 223-28. Although I am not insensitive to the requirements of due process in giving criminal defendants fair notice of the standard of conduct to which they can be held accountable, see United States v. Anzalone, 766 F.2d 676 (1st Cir.1985), the present situation, i.e., the commission of robbery and murder by Customs agents, clearly does not fall short of that constitutional requirement as it can hardly be argued that appellants were unaware that such conduct would violate some federal criminal statute, or that any person in the United States would not be entitled to equal protection of its laws irrespective of their foreign status. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1885) (the guarantees of the Fourteenth Amendment extend to foreign citizens temporarily or permanently residing within the United States). See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 481-82, 5 L.Ed.2d 492 (1961) (evolution of § 242 as result of passage of Fourteenth Amendment); Screws v. United States, 325 U.S. 91, 100, 65 S.Ct. 1031, 1034-35, 89 L.Ed. 1495 (1945) (in passing § 242 “Congress sought to enforce the Fourteenth Amendment”).
The issue, however, is whether appellants’ conduct violates this particular criminal statute. Contrary to my colleagues, I believe it does. It does so because such construction is required as a matter of plain meaning, because it makes common sense and is fair, because what skimpy legislative history there is, supports such a reading, and lastly, because there is prece-dential support for this conclusion.
As the majority correctly points out the term “inhabitant” can mean different things depending on the purpose of the statute in which the term is used, or the dictionary conveniently at hand. I, for example, have found that an “inhabitant” is one who “inhabit[sj,” that is, one who “1. live[s], live[s] at, [or] abide[s].” Rodale, The Synonym Finder, Rodale Press (1978), p. 574. Independent of the source of our respective definitions, however, on two things my colleagues and I should be able to agree. First, Yamil Mitri-Lajam was “[a]live” within this territory before he had the misfortune of coming upon appellants, and secondly, he was very much a “[non-]inhabitant,” under any definition, soon thereafter.
Another point of agreement, perhaps more fundamental in nature, should be the proposition, apparently accepted by the majority, ante at 225, that in enacting 18 U.S.C. § 242 Congress intended this provision to be interpreted broadly. This is in keeping with the spirit of civil rights legislation enacted at about the time § 242 was passed. Cf. Ngiraingas v. Sanchez, — U.S. -, -, 110 S.Ct. 1737, 1746, 109 L.Ed.2d 163 (1990) (Brennan, J., dissenting) (“The Civil Rights Act was intended 'to protect and defend and give remedies for their wrongs to all the people’ and thus to be ‘liberally and beneficently construed’ ”) (emphasis in original). It should therefore *230follow that the term “inhabitant” must be given its most ample meaning rather than the restricted denotation adopted by the majority. And it makes sense to do so, as the majority’s interpretation “ ‘thwarts the obvious purpose of the statute.’ ” See In re Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978). The scant legislative history of § 242 also supports my view, at least to the same extent as the majority’s, for like a smorgasbord, legislative history has something for everyone.
Section 242 was originally enacted as Section 2 of the Civil Rights Act of 1866. Act of April 9, 1866, Ch. 31, 14 Stat. 27, quoted in Screws v. United States, 325 U.S. 91, 98, 65 S.Ct. 1031, 1033-34, 89 L.Ed. 1495 (1945). Section 2 criminalized the deprivation of certain substantive rights by a person acting under color of law, while Section 1, enacted at the same time, defined the rights entitled to protection. As stated at the time by Senator Trumbull, Chairman of the Senate Judiciary Committee which reported the bills, the purpose of Section 2 was “to protect all persons in the United States in their civil rights and furnish the means of their vindication.” Cong.Globe, 39th Cong., 1st Sess., 211 (1866) (emphasis added), quoted in Screws v. United States, 325 U.S. at 98, 65 S.Ct. at 1033-34.1
In 1870, Sections 1 and 2 were reenacted and amended as Sections 16 and 17. See Screws v. United States, 325 U.S. at 99, 65 S.Ct. at 1034. Act of May 31, 1870, Ch. 114, 16 Stat. 140. Section 16, like Section 1, still contained a grant of substantive rights, but was changed to provide those rights to “all persons within the jurisdiction of the United States” rather than merely to those “persons born in the United States.” See note 2, supra. While Section 17, the enforcement provision, still retained the term “inhabitant,” the legislative history reflects that the statute was amended to ensure that the protection of Section 17 applied to all persons within the jurisdiction of the United States.
Senator Stewart, the chief proponent of the amendment, explained the scope of the new Act, stating:
The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have the equal protection of our laws. It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill.
The civil rights bill had several other things applying to citizens of the United States. This simply extends to foreigners, not citizens, the protection of our laws.
Cong.Globe, 41st Cong., 2d Sess. 1536 (1870) (emphasis added). See Screws v. United States, 325 U.S. at 99, 99 n. 7, 65 S.Ct. at 1034, 1034 n. 7. Moreover, when explaining that the new law extended protection to aliens within the country, Senator Stewart made it clear that the Act covered all those physically present in the United States. See Cong.Globe, 41st Cong., 2d Sess. 3658 (1870), quoted in Otherson, supra, at 1284 (emphasis provided) *231(“aliens, who may come here, are entitled to that [equal] protection”). See also Cong.Globe, 41st Cong., 2d Sess. 1536 (1870), quoted in Otherson, supra, at 1284 (emphasis added) (bill protects “all persons who are in the United States,” and “all persons within the jurisdiction of the United States”). See United States v. Classic, 313 U.S. 299, 327-28 n. 10, 61 S.Ct. 1031, 1043-44 n. 10, 85 L.Ed. 1368 (1941).
Since Section 17 refers to Section 16 to define the protected rights, the two sections must be read as coextensive.2 Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (comparing and harmonizing Section 1 of the 1866 Act with Section 2 when interpreting the statute). To construe the enforcement provision more narrowly than the substantive provision would be ascribing to Congress an intent to give all persons in the United States certain rights, while providing protection for those rights to only certain persons. See Screws v. United States, 325 U.S. at 100, 65 S.Ct. at 1034-35. As the Ninth Circuit in Otherson explained (637 F.2d at 1282):
Since the 1866 Act had used ‘inhabitant’ to denote citizens — those on whom it conferred substantive rights — while the 1870 Act confers those rights on a much broader class, one can infer that ‘inhabitant’ in the 1870 Act refers to that expanded class: all persons present within the jurisdiction of the United States. Otherwise, section 17 would protect only a subclass of those to whom section 16 granted substantive rights — an anomaly contrary to the rule that provisions of a single act should be construed in as harmonious a fashion as possible. Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207 (1973).
Lastly, we come to the precedential support in interpreting this provision, the Ninth Circuit’s decision in United States v. Otherson, supra, a case which my brethren claim did not hold what in fact it did hold, and which they distinguish from the present situation on the basis that the victims in that case “were illegal aliens, present in the United States, presumably intending to live for some time in this country” [and thus less qualified within the restricted definition of “inhabitant” proposed]. Ante at 227 (emphasis supplied). After reading Otherson it may be possible to disagree with its conclusions, but certainly it cannot be distinguished on the grounds claimed by the majority. A brief summary of the facts would seem to suffice to establish the majority’s misreading of the holding in Otherson.
On July 3, 1979 in the morning, a Border Patrol aircraft with Otherson aboard spotted aliens illegally crossing the border from Mexico. One of the aliens directed an obscene gesture at the aircraft. Shortly thereafter he was taken into custody whereupon Otherson and other members of the Border Patrol proceeded to assault him and several other aliens. This was repeated the next day while they were still in custody waiting “for routine deportation.” Otherson, 637 F.2d at 1277. The Court of Appeals specifically concluded that:
There was no evidence as to the identities, origins or destinations of any of the victims, nor as to the reasons for their presence in the United States.
Id. Defendants challenged the application of § 242 to this situation claiming that the aliens were not “inhabitants” within the reading of that section. After an exhaustive discussion of the legislative history of § 242, much of it covered herein, the court unequivocally rejected this contention and ruled that:
[T]he term “inhabitant” as used in section 242 does include all persons, without exception, present within the jurisdiction of the United States.
Id. at 1285 (emphasis added).
From the above, it is clear that the alien victims in that ease could not have quali*232fied within any of the potpourri of definitions of “inhabitant” provided by the majority, ante at 224-25, unless it can be said that they were “residents” or “dwellers” of the holding pen in which they were provisionally kept pending their “routine deportation.” Such a distinction from the present case would be, to say the least, somewhat artificial. Thus, in my opinion, Otherson holds squarely against the majority’s interpretation of § 242, and I believe, correctly so.
The Ninth Circuit’s convictions in Other-son do not stand alone. The Fifth Circuit in United States v. Dávila, 704 F.2d 749 (5th Cir.1983), without comment approved a conviction under this statute in a case involving the sexual abuse of illegal aliens shortly after they crossed the border from Mexico.
The Magna Carta notwithstanding, there is no unfairness or lack of due process to appellants by the adoption of my proposed interpretation to § 242. In this respect I would like to again draw from an earlier challenge to this provision in which it was stated:
[Defendants] were not puzzled to know for what they were indicted ... They simply misconceived that the victim had no federal rights and that what they had done was not a crime within the federal power to penalize. That kind of error relieves no one from penalty.
Screws v. United States, 325 U.S. at 128, 65 S.Ct. at 1049 (Rutledge, J., concurring) (footnote omitted).
In my opinion the majority’s interpretation of § 242 does violence to a longstanding scheme established to lend support to the rights guaranteed by the Fourteenth Amendment. This scheme requires interpretation of the supportive legislation in a manner coextensive with that Amendment. See Yick Wo v. Hopkins, supra. This was clearly the intention of the Court when it said in 1945 with regard to § 242 and the Fourteenth Amendment:
We hesitate to say that when Congress sought to enforce the Fourteenth Amendment in this fashion it did a vain thing. We hesitate to conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture.
Screws v. United States, 325 U.S. at 100, 65 S.Ct. at 1035 (footnote omitted). I know of nothing that has taken place in the 45 years since this statement to weaken the vitality of this proposition.
Lastly, I believe that the arguments proposed by the majority regarding the temporary nature of the victim’s presence in Puerto Rico, rather than supporting their interpretation of § 242, pinpoint a major flaw in their position. Brother Breyer’s proposal could allow the civil rights of an intransit passenger in the San Juan airport to be violated with impunity under § 242, while granting its full protection to the overnight sojourner at the airport hotel who got off the same flight to await a connecting flight next morning to Timbuktu. In Brother Aldrich’s bus, some of the passengers stopping for lunch could be subjected to abuse by local authorities, immunized from the scope of § 242 by the majority’s interpretation, while others, who sat at the same lunch counter, would be protected from the nefarious actions of these officials. Can such incongruous results be part of Congress’ intended “broad interpretation” in enacting § 242? I think not.
For the reasons stated above, I believe that the majority’s conclusions regarding § 242 are erroneous, and therefore I dissent from Part II of the court’s decision.
. Both Sections 1 and 2, as originally introduced in Congress, referred to "inhabitants” of the United States. Section 1 gave “the 'inhabitant' of every race and color ... the right in every State or Territory in the United States ... to full and equal benefit of all laws,” while Section 2 made it a misdemeanor to "subject [ ] any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act.” Section l’s reference to "inhabitant" was changed in the House of Representatives to refer only to “citizens" or "persons born in the United States” because of concern that Congress only had authority over citizens. See United States v. Otherson, 637 F.2d 1276, 1281 (9th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981) (citing Cong.Globe, 39th Cong., 1st Sess. 1115 (1866) (remarks of Representative Wilson)). Despite the fact that the coverage of Sections 1 and 2 was to be coextensive, the reference to "inhabitant" inadvertently remained in Section 2. See Cong. Globe, 39th Cong., 1st Sess. 1292 (1866) (“Mr. Speaker the word 'inhabitant' is printed in the second section in mistake for ‘citizen’. I say this upon the suggestion of the chairman of the committee”). See also Otherson, supra, at 1281—82.
. Section 17 in pertinent part provides:
That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act * * * shall be deemed guilty.