Boyd

concurring in part and dissenting in part:

I am pleased to concur in the disposition, except as to Part II. I respectfully dissent from Part II because genuine issues of material fact remain as to whether the officers had probable cause to arrest Hon for a violation of California Penal Code section 148(a). It is undisputed that Hon heard the order to disperse, and lingered momentarily on the station premises to question the officer’s order. However, Hon’s questioning of the police officer is protected by the First Amendment. See People v. Quiroga, 16 Cal.App.4th 961 , 20 Cal.Rptr.2d 446, 448 (Ct.App.1993) (citing Houston v. Hill, 482 U.S. 451, 461 , 107 S.Ct. 2502 , 96 L.Ed.2d 398 (1987)). The California Courts of Appeal have also held that “it surely cannot be supposed that Penal Code section 148 criminalizes a person’s failure to respond with alacrity to police orders.” Id. I therefore would also affirm the district court’s denial of summary judgment on this ground.

MEMORANDUM *

Hermosa Beach police officers appeal the district court’s denial of then- motions for summary judgment based upon qualified immunity. The facts are known to the parties and need not be repeated here, except as necessary to explain our decision.

I

We lack jurisdiction to review the district court’s denial of qualified immunity to the officers regarding the events at the Vons store because the officers raise only questions of evidentiary sufficiency rather than issues of law. See Johnson v. Jones, 515 U.S. 304, 313 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). Whether and to what extent the officers “personally participated” in the alleged restrictions on picketing involves a non-appealable weighing of the evidence rather than an appealable legal question.

In any event, the picketers have raised a genuine issue of material fact regarding whether the named defendants were personally involved by identifying call dispatch logs and strike pay logs placing named defendants at the Vons at the same time as picketers who testified to daily oppressive police tactics. The picketers adduce additional evidence that Sergeant Heard refused to take police reports from picketers; that…