A federal appeals court found that the New York City Police Department use of a “sound gun” to keep crowds at bay counts as a use of force, allowing plaintiffs who say they were injured by the device at a 2014 rally in Manhattan to proceed with excessive-force claims against the department.

A panel of the U.S. Court of Appeals of the Second Circuit denied the NYPD’s motion to dismiss a suit filed by six protesters who took to the streets the day after a grand jury on Staten Island declined to indict police officer Daniel Pantaleo for the death of Eric Garner, who died while Pantaleo had him in a choke hold.