concurring in part and dissenting in part:
I have no quarrel with the majority opinion, except for its affirming liability against Mason County. In 1959, the Washington legislature enacted a comprehensive civil service system for the employment of sheriffs’ deputies, creating a commission with the authority to make personnel policy and review its implementation. Washington courts have since repeatedly held this system superior to any supposed rights of county sheriffs over their personnel.
Nevertheless, from a statute naming the county sheriff its chief law enforcement officer, the majority concludes he is also the final policymaking authority for personnel training. The majority holds the entire civil service system irrelevant by inventing a distinction between “hiring” and “training,” a distinction without basis in controlling Washington state law. I disagree, and because the case against Mason County turns on this point, I respectfully dissent.
I
The jury found that constitutional deprivations had been inflicted under the color of law, see 42 U.S.C. § 1983, and held liable the individuals involved. The jury also imposed liability on Mason County. Review of the county’s liability, and the erroneous instructions that led to it, is the issue I address. We review jury instructions to determine “whether, considering the charge as a whole, the court’s instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading.” Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir.1988).
*1490Section 1983 does not impose vicarious municipal liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 1297, 89 L.Ed.2d 452 (1986) (Pemb-aur ). Direct municipal liability is extremely limited, and applies only “to acts that are, properly speaking, acts of the municipality — that is, acts which the municipality has officially sanctioned or ordered.” Id. at 480, 106 S.Ct. at 1298 (quotation omitted). A municipality is liable only if the tort was committed pursuant to a municipality’s official policy. Id. at 479, 106 S.Ct. at 1298.
“The official policy requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Id. at 479-80, 106 S.Ct. at 1298 (quotation omitted) (emphasis in original). The official policy requirement is the focal point for recent cases which have considered the issue. It has been precisely defined by the Supreme Court to maintain appropriate limits on burgeoning municipal liability. The district court, in its instructions to the jury, ran afoul of these appropriate limits. The majority opinion, in its attempt to save these flawed instructions, threatens to blur the precise distinctions required by Supreme Court authority.
The identification of officials whose decisions represent official policy is a question of state law to be determined by the trial judge before the case is submitted to the jury. Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989) (Jett). “Municipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur, 475 U.S. at 481, 106 S.Ct. at 1299 (plurality opinion); see also Jett, 109 S.Ct. at 2723.
Plaintiffs (collectively Davis) proceeded to trial against Mason County on a theory that the county had an official policy to hire, train, and supervise its deputy sheriffs inadequately. Davis argued that the county sheriff was the final policymaking authority for personnel. Consequently, he argued, the sheriffs personnel decisions constituted official county policy, on which Mason County liability could be pegged.
The district court adopted Davis’s theory in its jury instructions. “The Sheriff of Mason County is the chief law enforcement officer of that county and a policy-making official for the Mason County Sheriff’s Office.” The majority has attempted to save this instruction by reference to Wash.Rev. Code Ann. § 36.28.010 (West Supp.1990) (“The sheriff is the chief executive officer and conservator of the peace of the county.”). Relying solely upon this statute, the majority holds that “[a]s chief executive officers, sheriffs possess final authority with respect to the training of their deputies, and thus it may be fairly said that their actions constitute county policy on the subject.” Maj. op. at 1480.
The reality is decidedly more complex. The sheriff may be “chief executive officer and conservator of the peace” but he is profoundly not the final authority for personnel administration. Final authority for personnel administration does not rest with the county sheriff; rather it rests with the civil service commission (Commission), pursuant to Wash.Rev.Code Ann. § 41.14 (West 1964 & Supp.1990). The Commission’s extensive powers and duties include the making of rules and regulations about examinations, appointments, promotions, transfers, reinstatements, demotions, suspensions, and discharges, and which “may also provide for any other matters connected with the general subject of personnel administration.” Wash.Rev.Code Ann. § 41.14.060(1) (West Supp.1990).
“Implicit in the statutory scheme is the legislative intent to circumscribe the county sheriff’s previously unbridled discretion in personnel matters.” Fezzey v. Dodge, 33 Wash.App. 247, 249, 653 P.2d 1359, 1361 (1982). “A full reading of [Wash.Rev.Code Ann. § J41.14 reveals that in its enactment *1491the legislature intended to preempt the coverage by county personnel systems of deputy sheriffs’ selection, promotion and termination.” Clallam County Deputy Sheriffs Guild v. Board of Clallam County Commissioners, 92 Wash.2d 844, 847, 601 P.2d 943, 946 (1979) (en banc).
The majority attempts to discount the policymaking authority of this broadly empowered Commission by isolating a portion of Davis’s theory at trial and hanging the entire case on it. The majority argues that liability arises solely from a failure of training and not from any other aspect of personnel administration. Maj. op. at 1481. Of course, the majority is entitled to tailor its opinion as it sees fit, but it cannot alter state law or recent Supreme Court authority to match these developed contours.
It appears to me that the majority itself loses sight of its distinction. In a later section of its opinion, the majority simply asserts: “Since we have found failure-to-train liability as a matter of law, there is no need to inquire into whether the two other grounds upon which plaintiffs state their claim — negligent hiring practices and failure to provide adequate supervision — subjected the County to liability.” Maj. op. at 1483 n. 5. In fact, the majority cannot so inquire, because to do so would undermine its theory of final policymaking authority, which depends on the absence of these other grounds. A few pages before, this distinction was crucial. Maj. op. at 1480. I have no explanation for this inconsistency.
Washington state law does not suggest a distinction between “hiring” and “training” for the purposes of final policymaking authority. In order to save Davis’s case, the majority treats Washington law as if it said “the Commission may make rules and regulations about any matters connected with the general subject of personnel administration, except training.” This, I respectfully suggest, it cannot do. Absent a state law basis for its distinction, and the majority does not propose one, both hiring and training are properly included within the “general subject of personnel administration,” over which the Commission has final policymaking authority. Wash.Rev.Code Ann. § 41.14.060(1) (West Supp.1990).
This is true, even if the sheriff actually hires or even trains his personnel, as recent Supreme Court authority makes clear. In Pembaur, two deputy sheriffs forcibly entered Pembaur’s clinic to serve subpoenas on clinic employees. The deputies acted at the express direction of the county sheriff and an assistant prosecutor. The Supreme Court reversed the appellate affirmance of the district court’s dismissal of Pembaur’s section 1983 claim against the county. In doing so, the plurality was careful to distinguish the situation before us.
Thus, for example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriffs decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board.
475 U.S. at 483 n. 12, 106 S.Ct. at 1300 n. 12 (plurality opinion) (emphasis added). Thus, final authority with regard to law enforcement is irrelevant to a claim alleging a failure of personnel policy. The statement from Pembaur, as well as logic and common sense, makes this clear. Moreover, the actual exercise of discretion in hiring or training cannot change the locus of final policymaking authority, which is fixed by state law.
*1492This last point is poignantly illustrated by another recent Supreme Court case, City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Praprotnik was transferred from one city agency to another and was then laid off. The jury found that the transfer and layoff had been retaliatory for Praprotnik’s exercise of his first amendment rights. The jury exonerated the individual defendants and held the city liable.
The Supreme Court reversed the determination of municipal liability. The court of appeals in Praprotnik, like the majority here, held that Praprotnik’s immediate supervisors had final authority with regard to his employment. Id. at 117, 108 S.Ct. at 920. Seven of the eight Justices considering the case disagreed with this contention. “To the contrary, the City Charter expressly states that the Civil Service Commission has the power and the duty [to consider and determine all personnel matters].” Id. at 129, 108 S.Ct. at 927 (O’Connor, J.) (plurality opinion) (bracketed material in place of statutory language); see also id. at 132, 108 S.Ct. at 928 (Brennan, J.) (plurality opinion).
Following Praprotnik, it matters not whether the sheriff actually hired or even trained his personnel. These acts are irrelevant to the locus of final policymaking authority. As I have already said, the issue turns solely on Washington law, which empowers the Commission with final poli-cymaking authority over the entire subject of personnel administration. See Jett, 109 S.Ct. at 2723; Wash.Rev.Code Ann. § 41.14.060(1) (West Supp.1990). Washington law does not distinguish between hiring and training, or between training and any other aspect of personnel administration, in its definition of Commission powers.
As directed by Praprotnik and Pemb-aur, and required by Washington state law, I would therefore hold that the Mason County sheriff is not a final decisionmak-ing authority with regard to “hiring” or “training” deputy personnel. This holding would require reversal as to Mason County, eliminating the need to consider the district court's second dispositive error. Since the majority both reaches and erroneously decides this issue, however, my discussion necessarily continues.
II
The district court instructed the jury to find liability against Mason County if the county acted with “thoughtless disregard” or “reckless disregard.” This is not the law. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ('Canton), holds that a municipality will be liable “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. 109 S.Ct. at 1204 (emphasis added).
Canton requires the jury to find an element of deliberateness; the district court’s instructions did not. Thus, I would hold that the instructions and Canton are irreconcilable. The majority nevertheless attempts to save these erroneous instructions by overlooking the differences in language and by contending that, in any event, Mason County waived its objection.
The district court gave its instructions in apparent reliance upon Bergquist v. County of Cochise, 806 F.2d 1364 (9th Cir.1986), since Bergquist was the law of this circuit at the time those instructions were given. Bergquist held that municipal liability for a failure to train required no more than gross negligence. Id. at 1370. Subsequent to trial, however, the Supreme Court decided Canton, overruling Bergquist and requiring no less than a showing of deliberate indifference. See 109 S.Ct. at 1204 & n. 7.
The majority contends that by not anticipating Canton, and by not objecting to the Bergquist instruction at trial, the County waived the Canton objection — even though Canton was subsequently decided.
“No exception is required when it would not have produced any results in the trial court because ‘a solid wall of Circuit authority’ then foreclosed the point.” Robinson v. Heilman, 563 F.2d 1304, 1307 (9th *1493Cir.1977), quoting United States v. Scott, 425 F.2d 55, 57 (9th Cir.1970) (en banc). This rule protects the parties and district court from the burden of countless objections to previously decided points of law on the hope they may someday be changed.
The majority concedes as much. It argues, however, that Bergquist is not "a solid wall of Circuit authority.” The majority states
[ajlthough in Bergquist we did hold that a policy of gross negligence in training could give rise to a claim for section 1983 liability, we said that “[t]he Supreme Court expressly reserved the question whether ‘something less than intentional conduct, such as recklessness or “gross negligence,” is enough to trigger the protections of the Due Process Clause.’ ” The Supreme Court subsequently answered this question in City of Canton. In Bergquist, by saying that the question was left open by the Supreme Court, we clearly indicated that the state of mind sufficient to find failure-to-train liability was not a settled point of law.
Maj. op. at 1481-82 (citations omitted). My reading of Bergquist is different. Bergquist observes the question left open by the Supreme Court and then proceeds to decide it. Its decision settled the point for this circuit and for the district courts within it, until overruled by Canton.
It is pointless to debate how “settled” the issue was within the circuit. At the time of trial, Bergquist was authority directly on point. The argument in this circuit was over. The district court instructions properly conformed to Bergquist — an objection would be useless. Thus, the Canton objection was not waived.
At best the majority’s analysis shows that Bergquist was not a solid wall of Supreme Court authority. Indeed it was not. But Robinson does not require Supreme Court authority, nor should it. Robinson specifically refers only to a circuit wall. From the perspective of the district courts, for which the Robinson rule was announced, Ninth Circuit precedent is as controlling as that from the Supreme Court.
Should we adopt a rule waiving objections to adverse Supreme Court precedent while requiring those to mere Ninth Circuit precedent? This distinction makes no sense to me. The district court must follow both; an objection to either will be ineffectual at trial. Robinson announced a bright-line rule to minimize the delay and confusion of needless trial objections. The majority opinion obliterates it.
Perhaps the majority signals discomfort with its waiver theory by providing an alternative. Assuming the Canton objection was not waived, the majority contends that the erroneous instructions were harmless error. This is so, the majority argues, because the county’s training policy was inadequate as a matter of law. Maj. op. at 1482. Surprisingly, this contention is unaccompanied by an articulation of the relevant standard of review. Indeed, it is difficult to discern the authority by which it can be made. The majority cites Canton, but Canton remanded the precise question the majority now keeps for itself. 109 S.Ct. at 1207.
As I have already discussed, Canton requires findings that (1) a county official with final decisionmaking authority (2) acted with deliberate indifference in adopting a policy that (3) caused the tort to occur. Id. at 1204-06. These elements impose an extraordinarily high burden on Davis, a burden rendered especially unamenable to appellate disposition by Canton’s emphasis on its innate fact-dependency. See id. at 1206.
The majority nevertheless states that the deputies “received no training in the constitutional limits of the use of force,” maj. op. at 1482, and imposes county liability on this basis. Of course the deputies received training; the majority opinion itself recounts the training practices to discount their adequacy. Maj. op. at 1482-83. The majority’s attempt to reconcile this contradiction highlights the difficulty with its premise. The majority asserts that while training did occur, it did not cover the “constitutional limits of the use of force.” Maj. op. at 1482. This is an interesting way to define the issue, but one on which *1494the record is utterly silent; my review of the record reveals absolutely no evidence at this level of detail, and the majority offers none. The absence of proof cannot be properly charged against the county, as the majority has done. Davis has the burden here. See Canton, 109 S.Ct. at 1206.
Ultimately, the entire inquiry misses the mark. Even if the absence of evidence could be properly held against the county, which of course it cannot, it would be irrelevant to the questions of authority and deliberation necessary for a finding of a Mason County policy, and to the question of causation.
[The] rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.”
Moreover, for liability to attach in this circumstance the identified deficiency in a city’s training program must be closely related to the ultimate injury.
Id. at 1205-06. I have already discussed the elements of authority and deliberation, neither of which is present here. As for causation, the majority addresses this element only long enough to assert that it has been met. Maj. op. at 1483. By what authority does the majority justify this conclusion? No reliance can be placed on the jury’s findings, for the jury considered causation in a much broader context. At trial Davis offered to link his injury to inadequate hiring, training, and supervision. Based on the instructions given, the jury might easily have found causation only as to supervision or only as to hiring. On appeal, however, the majority has stripped from this theory both hiring and supervision, leaving only training for which it imposes liability. Whatever else might be said, this much is absolutely clear: We have no jury finding in this case linking Davis’s injury to “inadequate training in the constitutional limits of force.” Therefore, at the very least, the majority should remand the case for a new trial on this question. As it now stands, the majority apparently finds this fact for itself. This, I suggest, it cannot do.
Ill
The jury found the conduct of the deputy sheriffs completely unacceptable. It is thus tempting to fashion a theory imputing liability to Mason County, but the law requires we resist this temptation. The allure is to find some sure means of financial recompense for the torts that were committed, but that allure cannot be indulged here consistent with section 1983. The law imposes municipal liability only for torts caused by municipal policies, adopted by persons with final decisionmaking authority, after some element of deliberation. The law requires plaintiffs to prove each of these elements by a preponderance of the evidence.
The jury instructions at issue failed to follow the law. As a consequence, Davis was not required to meet his burden of proof, and the jury was unable to consider properly the claim of Mason County liability.
The majority attempts to save these erroneous instructions by contracting the scope of Washington’s system of civil service and by contending that much of Mason County’s case on appeal was waived during trial. The majority then completes its work by deciding the case against the county as a matter of law. For these reasons, I respectfully dissent from the holding affirming liability against the county.