The Colorado Court of Appeals declined to overturn a protective order under Colorado’s “red flag” gun safety law, even though the findings of the lower court judge who granted the order were missing.

On Jan. 24, 2020, the estranged wife of Christopher Charles Fox requested an extreme risk protection order against him. The law providing for such protections, which took effect on New Year’s Day, permits a court to temporarily restrict an individual’s access to firearms if they pose a danger to themselves or others. Named after a Douglas County deputy murdered in a 2017 shootout, the bill drew opposition from conservative sheriffs who questioned its constitutionality.

At the time, Fox’s wife and her father interpreted text messages from Fox as threatening violence, and he brought a concealed gun to a custody handoff of their children.

She was the only witness who testified at the initial red flag hearing, and a Denver judge granted her request for a temporary protection order. Two weeks later, multiple witnesses spoke at a hearing for a permanent order, and the judge instituted a one-year restriction after finding Fox posed a “significant risk” of injury by having a firearm in his custody.

“There have been a pattern of acts or credible threats of violence by the respondent within the past year,” the judge indicated, checking three criteria from a total of 12 possible reasons.

Fox appealed, arguing the evidence was insufficient to label him a risk. However, the findings of the Denver judge were never transcribed. Consequently, the Court of Appeals could not review the lower court judge’s reasoning.

However, rather than erring on the side of Fox, the three-judge panel was obligated to assume the Denver court’s decision was justified.

“Because we do not have the benefit of the district court’s oral findings, however, we do not have an adequate record to reverse the court’s ERPO. So we must presume the correctness of the court’s decision and affirm,” wrote Judge Anthony J. Navarro in an unpublished opinion issued on Thursday.

He added that it was Fox’s duty to provide the Court of Appeals the relevant records supporting an appeal.

Going off of the testimony at the February hearing, the panel acknowledged the parties challenged each other’s credibility, particularly around Fox’s reported drug use, mental health and allegations of violence against him. 

“We do not know how the district court resolved these disputes and which testimony the court credited,” Navarro conceded. But because they could not speculate about what factors supported the Denver judge’s decision, the panel declined to reverse the protection order.

Fox’s attorney, John Rice, indicated on Thursday that it was unusual for a judge’s oral findings to not be transcribed, and is exploring his client’s options.

The Colorado Sun reported that in the first seven months after the law’s enactment, there had been 73 requests for extreme risk protection orders filed in 19 counties.