Mackinney's act does not establish probable cause for an arrest under
§ 148, and no reasonable officer could have thought otherwise. First, when the officers yelled to Mackinney to stop writing, they were still in their unmarked car. Mackinney makes the plausible claim that he did not know that it was the police who gave the order; because we are reviewing a grant of summary judgment against Mackinney, we must resolve any doubt about this issue in his favor.
Jesinger, 24 F.3d at 1130. In
People v. Lopez, the California Court of Appeals found that “[b]efore one can be found culpable [for resisting arrest under
§ 148] ... he or she must know, or through the exercise of reasonable care should have known, that the person attempting to make the arrest is an officer.”
188 Cal.App.3d 592, 599, 233 Cal.Rptr. 207 (1986). The same reasoning applies to obstructing justice under
§ 148. No reasonable officer could have thought that he or she had probable cause to arrest Mackinney when it was apparent that Mackinney probably did not realize that the order he was failing to obey came from the police.