Presupposes knowing where the victim was in relation to 1) the target(s) being fired upon and 2) the position of the shooter as he fired.
Trying to shoehorn facts (or lack thereof) to fit a conclusion, instead of letting facts lead to a conclusion, isn't a particularly good idea, unless one wants a career writing editorial columns for the NY Times.
Plus, why would it even show up as a blip on one's Give-A-Rat's-Ass Meter....given the circumstances, whether or not he's a highly accurate safety violator isn't the center of gravity of the problem.